Dead Dogs: Breed Bans, Euthanasia, and Preemptive Justice

By  Colin Dayan

Early on Friday morning, March 11, 2005, a caravan of vehicles drove from New Orleans to a home outside the city of Lafayette, in the heart of “Cajun country.” State police, a SWAT team, U.S. customs officials, and federal agents, with the aid of the Louisiana Society for the Prevention of Cruelty to Animals (LSPCA) and the Humane Society of the United States, raided the home of Floyd Boudreaux. They confiscated 57 American pit bull terriers and arrested Boudreaux and his son Guy on 48 counts of dogfighting. The dogs were loaded into a truck and driven back to New Orleans.

That night the LSPCA began killing the dogs by injection. They did not stop until the next day. By the time the Boudreauxs were released on bail on Monday morning, their dogs had already been cremated.

The dogs were not crippled, maimed, or blinded. Some had scars. Some had calluses. Most were healthy, described as “normal” on the LSPCA’s intake forms. Nineteen of the pit bulls were puppies, less than one year old. One of them would have whelped that weekend. Dr. Wendy Wolfson, a veterinarian with the LSPCA, testified that she conducted a hands-on exam of each animal: “We did a whole barrage of things to each dog,” she said. She later testified that she found evidence of dogfighting injuries and that the animals were labeled “fighting dogs.” During my visit to his clinic in Lafayette, J.W. Lambert, Jr., Boudreaux’s veterinarian, told me, “God couldn’t have created a more efficient destruction of evidence.”

Once categorized as fighting dogs, the pit bulls were assumed inherently dangerous, too aggressive to live—no matter the evidence of their friendliness and vigor and regardless of the absence of any proof of actual fighting. Deemed “threats to the public,” they could be killed summarily. According to Louisiana law, “fighting dogs are contraband per se.” An arbitrary label put an end to their lives, without any recourse, appeal, even notice to their owners. Not only were they no longer personal property, but once seized from their owners, the dogs were legally disposable too.

Three and a half years after the raid, in October 2008, the Boudreauxs were acquitted of all the charges against them. The judge found no evidence of any crime. During the proceedings, Jason Robideaux, Boudreaux’s lawyer, condemned the LSPCA: “I believe the state’s purpose was to seize the Boudreaux’s dogs and kill them to end the bloodline. I don’t want to speculate on the reasons.”

The seizures, detentions, and exterminations of pit bulls—sanctioned by laws in many states—expose the statutory logic for making preemptive justice constitutionally permissible: canine profiling supplies the terms for inclusion and ostracism, and even the suspension of due process rights. No criminal conviction of the owner is required for state seizure and destruction of property. In other words, the Constitution’s Fifth and Fourteenth Amendments, which prohibit the government from depriving anyone of “life, liberty, or property, without due process of law,” can be suspended for the public good without evidence, without trial, by classification alone.

In legal rationales, realities are created. Old inequalities and radical discrimination are repackaged in unexpected forms. In breed-specific legislation, the taint and incapacity of the disenfranchised live on. At a time when our government is labeling certain persons as threats—alleged terrorists, enemy aliens, illegal immigrants, ordinary people who want to get on airplanes—we need to ask how the seizure and destruction of dogs deemed contraband becomes a medium for the intimidation and debasement of humans in turn. Who should suffer deprivation without redress so that we can live in reasonable—safe and secure—consensus? And who gets to decide?

• • •

Pit bulls were once known as “America’s Breed”: RCA’s “Nipper” (pictured head cocked while listening to “his master’s voice”); Buster Brown’s “Tige”; “Pete the Pup,” part of the Little Rascals gang in the Our Gang comedies; and the pit bull pictured on the celebrated World War I poster proclaiming: “Land of the Free, Home of the Brave.” Sergeant Stubby, the most decorated dog in military history, fought for eighteen months in the trenches, saved several soldiers’ lives, and captured a German spy. Now the pit bull is the most demonized breed, the poster dog for dogfighting, the herald of criminality and drug-dealing, the mauler of children.

In 1987 Rolling Stone, Sports Illustrated, and Time Magazine all ran articles featuring pit bulls. Rolling Stone’s “A Boy and his Dog in Hell” reported on pit bulls used in street fights by gangs in North Philadelphia. Valued as proof of their owner’s mettle, the dogs were subjected to unimaginable torture and death if they lost. The cover of Sports Illustrated showed a snarling pit bull with the headline “Beware of This Dog” and branded these dogs with the locking-jaw myth and “a will to kill.” It was bested by Time’s “Time Bombs on Legs,” which compared the pit bull to “the vicious hound of the Baskervilles.” According to the Time article, the pit bull “has seized small children like rag dolls and mauled them to death in a frenzy of bloodletting.”

Dogs are liable to extermination if their presence signals disturbance or danger, even if they themselves are not dangerous.

Since then the pit bull has been the media’s choice for horror stories about dogs labeled “four-legged guns” or “lethal weapons.” Citing pit bulls’ “vicious propensity,” hundreds of towns large and small throughout the United States have adopted the first ever breed-specific dog bans. Regulations vary from one city to the next, but once a ban has been enacted, any dog considered a threat to public welfare can be summarily seized and put down. This despite the fact that other breeds of dogs also bite, but we hardly ever read about them. “Dogs that bite people,” as Malcolm Gladwell has pointed out, “are vicious because they have owners who want a vicious dog.” That is, what predisposes a dog to bite is not its nature, but its environment. The most loyal dogs are the most abused. Ever ready to please, these dogs become victimized by those they love most. They are either the tools of human-initiated aggression or, as Karen Delise writes in The Pit Bull Placebo, the targets of “every type of positive or negative emotional and physical circumstance humans are capable of imposing on dogs.”

When I say “pit bull,” I include American Staffordshire terriers (known as Amstaffs), as well as other dogs that merely look as if they might be part of the bully breed. The debates distinguishing between American pit bull terriers and American Staffordshire terriers or Staffordshire bull terriers continue. Most generally, the dogs are considered cousins, bred from British bull and terrier combinations. The breed registered with the United Kennel Club and the American Dog Breeders Association is an American pit bull terrier, and with the American Kennel Club an American Staffordshire terrier. But they do look different. The pit bull is leaner, slightly higher up on the legs, while the Amstaff is stockier, with a squarer—more robust—wedge-head and the body lower to the ground.

As the late animal trainer, poet, and philosopher Vicki Hearne, Gladwell, and advocates of the breed explain, contemporary bans do not distinguish among the various members of the breed. The specter of outlawry tracks pit bulls, and indeed Amstaffs, and any dog categorized as a “pit bull type.”

How does a dog, a breed, get labeled “dangerous?” Are “vicious propensities” revealed by a bite, or simply the result of an alleged or a perceived ability to injure?

The summary disposal of dogs branded as “dangerous,” “offensive,” or a “threat” to the public can be traced to the early common law and later to the range of police measures instituted ostensibly to protect community interests. “The act to regulate and license the keeping of dogs is an exercise of the police . . . and is constitutional,” a Wisconsin court ruled in 1862. Dogs are liable to extermination if their presence signals disturbance or danger, even if they themselves are not dangerous. In spite of an abundance of concern for dogs throughout the nineteenth century, a dog without a license faced death by gunshot or beating not just from the police, who were entitled to destroy any threat to public welfare, but from anyone.

But more critical to their legal status than this canine outlawry was the early common law judgment that dogs were not property. Unlike “useful” or “domestic” animals such as cows or sheep, dogs could not be owned, and persons had no rights in them. Considered “base” or “inferior” to more valuable animals, dogs were entitled to less regard and protection.

Dogs’ disposability was always enshrined in legal judgments; current legislation against pit bulls takes the general legal discrimination against dogs and focuses it on one breed. Yet some appellate cases in the nineteenth century repudiated such summary execution. Questioning the necessity of legalized violence against dogs and their owners, a few judges not only shared their enthusiasm for dogs but also revealed a respect for their independence, nobility, and gameness.

In September 1905 John Domm was bitten by a dog while playing billiards in a saloon in Seneca, Illinois. More than a year later, he sued the owner, George Hollenbeck. Over a period of five years, four different courts grappled with questions about the dog’s temperament: was the dog fierce and malicious? Was the “face of a dog” inevitably “an index to his disposition”? This dog was identified as a “bull dog,” the generic term used to identify breeds that originated as bull baiters or pit fighters, though most no longer performed these functions. The case finally reached the Supreme Court of Illinois, whose decision tells a story exceptional by today’s standards in the attention paid to the dog’s relationships and his popularity.

We know that Hollenbeck had owned the dog only six weeks when he left him with friends. Subsequently he left the dog at another friend’s butcher shop. The dog remained there for two days. A grocery delivery wagon drove past; the driver’s friend noticed the dog with his “shiny harness” and whistled to him, and the dog jumped into the wagon. Sitting in the delivery truck for most of that day, the dog “acted in a quiet and inoffensive manner.” Later, the dog was brought to the saloon. What happened then remains unclear. Did the plaintiff provoke, push, kick, and chase the dog with his cue before being bitten, or did the dog attack first, chase him around the bar and onto the pool table, biting his arm and leg?

Though these questions were never answered, lower courts found that the bite alone proved “vicious propensity,” and such proof of threat remained impervious to any evidence to the contrary. Domm was awarded $750 for damages and costs.

A final appeal to the Illinois Supreme Court, however, reversed the decision. Numerous witnesses testified to the dog’s good nature and his elaborate trappings: a “fancy, ornamental harness, with brass buttons or tags” wound around “the legs and chest” and “a ring in the collar.” Not only was he “nice, quiet, sensible, good natured,” but “anybody could do anything in the world with him.” He had never “been used for fighting purposes . . . and had no marks to show that he ever was in a fight.” We also find out how he fared in the company of humans. Children played with him, wrestled with him, threw him down, and rode on his back through the streets. At the Keeley Liquor Cure, which promised a treatment for drugs and alcohol addiction through what was known as the “gold cure,” he became known as the “jag dog,” which meant something like “binge dog.” He followed recovering patients and became “a source of amusement to them.”

For the Supreme Court, no dangerous-dog determination could be made without first hearing ample evidence about the dog’s behavior or disposition—and his good nature, the brass buttons, the happy children, the recovering alcoholics redeemed him.

Hollenbeck’s dog nonetheless met a bad end. A guest described a visit to the dog’s owner, reporting that he had seen a skin or a robe on the floor. Hollenbeck said it was a bulldog’s skin: the dog had accidentally hanged himself by a rod that caught in his collar.

Though the Illinois Supreme Court proved a fair arbiter, most courts and legislatures of the nineteenth and early twentieth centuries saw dogs as disturbances or threats, and tougher regulations demonstrated the peculiar vigilance of the modern era. Nowadays, dangerous-dog hearings decide if dogs live or die. Vicious-dog law, or what some simply call “dog-bite law,” usually precludes any legal challenge—especially if the offending animal happens to be identified as dangerous simply because of the breed.

In May 2005 animal-control units began to round up all pit bulls within the Denver city limits. Dogs were taken from their homes and put down regardless of their disposition or demeanor. Last summer the New York City Housing Authority issued a ban on pit bulls (also identified as American Staffordshire terriers or Staffordshire bull terriers), rottweilers, and Doberman pinschers—“all of these either full breed or mixed breed”—or any other full-grown dog over 25 pounds in all public housing. So New York, the most urbane of American cities, now boasts the harshest public-housing dog regime in the country. What Gladwell described a few years ago as “a generalization about a generalization about a trait that is not, in fact, general” anticipated the undesirable, if not toxic, effects of unfounded prejudice.

In May of last year, Judge Burke F. McCahill of Loudoun Circuit Court in Virginia ruled legal Loudoun County Animal Care and Control’s current “No Adopt Out” policy. That meant that any abandoned dog identified as a “pit bull,” even if judged temperamentally sound by animal-behavior specialists, had to be euthanized rather than adopted. In the past three years, more than 200 dogs have been put down in Loudoun County. McCahill ruled that “a Citizen’s right to own a pit bull is entirely different than a citizen’s right to adopt.” So if you already possess a pit bull you can keep it, but anyone who wants to acquire one from a shelter is prohibited from doing so.

• • •

Today’s pit bull bans tell us more about ourselves than about the breed: about the rituals and the illusions that have become necessary to our survival. The drive to label, condemn, and exterminate has become a moral enterprise. No wonder the stories about pit bulls—at once labeled “vicious” and brutalized by those who so label them—confound the ability to know right from wrong, to judge injury, to discriminate between victims and predators, cruelty and care.

On a hot day in June 2009 Fabian Henderson threw his year-old pit bull Oreo off the roof of his Brooklyn apartment building. She survived the fall of six floors, breaking her two front legs and a rib and sustaining severe injuries to her liver. The New York-based American Society for the Prevention of Cruelty to Animals (ASPCA) used donations from concerned dog-lovers over the next four months and longer to nurse the “miracle” dog back to life—and then put her to death on November 13.

The ASPCA remains a paradox: a private organization paid for by donations that is also an arm of the state, endowed with police powers; a society instituted to prevent cruelty that kills dogs to be kind. In order to protect Oreo’s “quality of life,” Ed Sayres, ASPCA President and CEO, ordered that she be deprived of life. Although individuals and organizations—such as Camille Hankins of Win Animal Rights, and the no-kill animal shelter Pets Alive in Middletown, New York—begged to take Oreo, they were ignored or rebuffed.

Hearne, who observed the sanctimonious compassion that heralds the extermination of animals, doubted the pretense of humane treatment. In her preface to the 1994 edition of Adam’s Task: Calling Animals by Name, she wonders why the rise of the animal rights movement and an increased interest in ‘humane’ and ‘not for profit’ activities should coincide with, and at times be indistinguishable from, relentless enforcement activities targeting dogs.

Faced with the proliferation of breed bans and the escalation of police control, Hearne targets the well-meaning language of animal welfare. She argues that self-righteous care not only justifies, but also masks violence. The history of “humane law enforcement” prepares us for Oreo’s fate at the hands of the ASPCA. “I had to protect public safety,” Sayres said.

Nineteenth-century state regulatory policies and the police power that accompanies them always resurface. If a dog was a stray, the state had the right to unleash familiar practices of discrimination and violence. In Sentell v. New Orleans and Carrollton Railroad Company (1896), the precedent-setting case still used today to dispose of allegedly “dangerous and vicious dogs,” Justice Henry Billings Brown called for “legislation of a drastic nature” for “property” deemed offensive or harmful.

Even if dogs are considered property in “the fullest sense of the word,” Brown writes, they are comparable to rotten “meats, fruits, and vegetables.” If decayed, they “do not cease to become private property,” but “it is clearly within the power of the State to order their destruction in times of epidemic, or whenever they are so exposed as to be deleterious to the public health.” What counts as disposable, and when can due process be surrendered? He adds that “rags and clothing” must be destroyed if “they become infected or dangerous.”

In 1866 the state legislature of New York passed the country’s first anti-cruelty law. In the same year, it issued an Act to Incorporate the Society for the Prevention of Cruelty to Animals and granted it power in vague terms: “An Act for the prevention of cruelty to animals, and empowering certain societies for the prevention of cruelty to animals to do certain things.”

These “certain things” creditably included arresting anyone who tortured; tormented; deprived of necessary sustenance; or beat, mutilated, or killed “any living creature.” But that was not all. In 1894 a new law gave the ASPCA in New York control over stray and unwanted animals. Along with this responsibility, it was granted the power to order a license tax on dogs and the right to seize and dispose of dogs it had not licensed. A few years later, a New York court in Fox v. Mohawk and Hudson River Humane Society ruled this authority unconstitutional, since no state could delegate a private corporation to levy or collect taxes. The court questioned the validity of a statute that gave the Society the right to seize unlicensed dogs. Such a dispensation—and the profits that followed—gave it a special immunity and privilege not granted to others.

But on appeal the court upheld the statute. Though recognized as a private organization, this humane society was now legally authorized to enforce the law, to levy canine taxes, and to impound and destroy unlicensed dogs without notice to the owner and without any judicial proceeding.

The state’s power over dogs expanded in tandem with its empowerment of the newly established societies for “humane treatment.” So too did claims of humanitarian enlightenment. Dogs were no longer as legally insignificant as before, but they continued to be subject to the rigor of law: judged as dangerous, accused of damage or injury, impounded or killed. Their representation and treatment—cared for, beaten, ignored—offer limit cases in the extravagance of status-making in law.

Dogs thus legally disabled take their place along with vagrants and criminals. Around 1900, courts rallied to support legislative acts that led not only to re-enslavement through convict lease and chain gangs, but also to vigilante justice. Just as someone who summarily killed an unruly, stray, or unmuzzled dog was seen as peaceable and law-abiding, so lynch mobs tortured and murdered, knowing that they were respected as guardians of the community. Police departments, especially, used tramp acts or loitering and vagrancy laws to control persons the public viewed as nuisances. The language of threat, used to warn against the allegedly noxious, was the same whether the subject was human or animal. Police power was justified in the name of civil order—for the public safety, welfare, or morality of a community.

• • •

What does Oreo’s death teach us? How can the best way to protect an animal be to kill it? Since the much-publicized indictment of Michael Vick for dogfighting at his “Bad Newz Kennels” in Virginia, the ASPCA and the Humane Society of the United States (HSUS) have led the campaign against cruelty, rescuing dogs from alleged dogfighting operations. Once Vick’s surviving dogs were saved from abuse and confiscated, however, the same HSUS, along with People for the Ethical Treatment of Animals (PETA), argued for their destruction. According to PETA spokesman Dan Shannon, “the cruelty they’ve suffered is such that they can’t lead what anyone who loves dogs would consider a normal life.”

In November 2009 Time portrayed the mutilated, crippled, and blinded dogs rescued from a Michigan dogfighting ring. No longer to be feared, neither lethal nor hellish, these defeated dogs deserve our pity, or so the article suggests. They were more fortunate than the 146 pit bulls—including 60 puppies, even newborns—seized from breeder and convicted dogfighter Ed Faron’s Wildside Kennels in the mountains of North Carolina. Numerous organizations tried to adopt the dogs. They included Best Friends Animal Sanctuary in Utah, where Vick’s dogs were rehabilitated and renamed “Vicktory Dogs” in spite of the HSUS and PETA’s determination that they were beyond hope. Nevertheless, a superior court judge ordered that Wilkes County Animal Control must destroy them. Again, the HSUS publicly endorsed the court’s decision to kill the dogs, describing the “fight crazy” instinct, the irrevocable nature of “game-bred dogs.”

These accounts of deprivation and injustice return us to the deaths of the Boudreaux dogs of Lafayette. In confronting their summary disposal, we see how cruelty thrives in the guise of compassion. The possibility of such collective social derangement makes intellectually coherent actions that are incompatible with moral integrity.

LSPCA’s Kathryn Destreza, in her twenties when she led the raid and directed the “euthanasia” of the dogs, was recognized for her dedication to animal welfare and her role in this high-profile case. In February 2006 she was promoted from Chief Humane Officer to Director of Humane Law Enforcement for the LSPCA. A couple of years later, she was presented with a replica of a vintage ASPCA peace-officer badge. She received special recognition from Ed Sayres, the ASPCA chief who decided Oreo’s fate. He praised her “extraordinary zeal in providing mercy to animals.” Interviewed after the dogs’ destruction, she confessed that she had cried when the dogs were led, one by one, to Room 9-5, the LSPCA’s “euthanasia room”:

Seeing those big dopey looks from those big brown eyes . . . . I cried, yes, but I made sure not to cry in front of my staff . . . . Even as we were loading them onto the truck, you couldn’t help but think about what was eventually going to happen to them. Trying to breed another line like Boudreaux would be like trying to re-create Elvis. You can make some gold records, but there’s only one Elvis.

The collusion between humane organizations and the police functions of the state in seizing and dispatching dogs, once revealed and understood for what it is, has a frightening and well-known political analogue in Nazi concern for “life not worthy of being lived” and the euthanasia program of the Reich, which murdered over 100,000 incurably ill, severely disabled, criminally insane, or physically deformed persons. It was known euphemistically as Gnadentod—“mercy killing” or “death by grace”—among well-meaning health officials.

Henry Bergh, the founder of the ASPCA, once noted, “mercy to animals means mercy to mankind.” Perhaps we should not be consoled by this cliché.

Republished with permission of the author and Boston Review.  Read Peta's response here.