Berlin Court Decision last Wednesday and questions the judges raised
Hi Everyone...
Below is the English translation from the Press Office of the court in Berlin, on their judgement last Wednesday. Below that, for your interest, are some of the questions raised during the Appeal Hearing by the Justices....and how the government answered. Rudi and I feel, with the 4 studies we have on the breed and the additional temperament test results for the entire state (showing the Bull Terrier at the bottom of the aggression scale), with what we witnessed in the court that we have an excellent chance to remove the breed from the Federal ban next year, and that other breeds can follow the same path to be removed.
Cathie Dettmar
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The Niedersachsen (Lower Saxony) Dangerous Dogs Act differentiates between
two categories of dogs. Dogs of Category I: Ownership, breeding and multiplying the first
category, which contains the Bullterrier, American Staffordshire Terrier and
Pit Bull Terrier and crosses of these animals, is banned. Already existing
ownership can be exempted if the dog passes a temperament test, is held in
secure conditions and the owner has shown to be of the right character and without a police record. Dogs who don't pass the temperament test because they are
exceptionally aggressive, have to be put down. Once the dog has passed the
Character Test additional requirements apply for keeping and walking the
dogs, they also have to be sterilised.
Dogs of Category II: Which includes the Doberman and Rottweiler, but not the
German Shepherd, have to be muzzled and on lead whenever they are outside of
secure private dwellings and escape proof properties. Once they have passed
the temperament test they can be granted excemptions.
The County Administration Court Lueneburg threw out some of thoses rulings
after 4 plaintiffs had brought cases against the Act for being flawed. They
didn't see it necessary to ban ownership of dogs of Category I in order to
prevent danger to the public. It also saw the ruling of Category II breaking
the rule of equality in that the Rottweiler and Doberman were included, but
not the German Shepherd.
The Central Adminstration Court has confirmed the decision of the County
Administration Court and had declared the basic regulations of the Act in
question to be null and void. The Act makers had no authority to use the
breed as a lone criterium, without authority from the County Government.
Current knowledge is that certain breeds are suspected to be more dangerous.
How much that is a factor of triggering aggressive behaviour, when there are
many other possible factors - training and upbringing of the dog, knowledge
and personality of the owner, and the dog's life experience - is hotly
debated amongt experts. Suspected danger is not enough for the authorities
responsible for security to step in by creating an Act on the basis of the
general powers of policing. If the state interferes in the freedom of it's
citizens - in this case the dog owners - to prevent public danger, the rules
of the democratic state call for a law to be passed. County parliament has
the duty, after taking note of all the facts and after weighing the
interests of all parties concened, to pass the relevant laws and therefore
be responsible for breed list, if they so decide. No such law exists in
Niedersachsen.
In spite of the Act being declared null and void the necessary protection of
the public from danger caused by dogs is covered through the existing means
of the penal law and the law on general safety. The County Parliament still
has the right to further protect the public by prevention of danger through
passing laws.
The doubt in relation to the rule of equality, which based on the fact that
the Act didn't cover specifically the German Shepherd didn't impinge on the
decision of the Court.
BVerwG 6 CN 5.01, 6.01, 7.01, 8.01 - Urteil vom 3. Juli 2002
What we saw in the court room:
The judges were extremely well-informed and had read all evidence and statistics from both sides.
The Chief Justice asked a witness from the Minister of Agriculture's office, why they think these breeds are dangerous. The reply: Their fighting dog history and the fact that their standard says 'Gladiator of the canine race'...he went on to say, "and I don't have to explain what that means". Another judge said, 'Well the fighting history was over150 years ago...do you still think they are dangerous today?'. The government witness replied yes. (No evidence was presented to support this fact).
The government also brought up the bite statistics over a 1-2 year period (was used in the VDH trial). Shows a percentage of breeds and reported bite incidents. They would quote the number of litters registered by the VDH, for say Rottweilers and then quote the number of bites reported, ultimately giving the court a percentage figure for that breed that was aggressive. A question was raised by a witness for the Rottie club, who is also a court judge and Rottie breeder, that those numbers, for any breed, does not include the enormous amount of dogs bred without papers...so the percentage point of pure-bred dogs who had bitten would be inflated beyond what is really accurate.
Then the judges said though it was up to the politicians to protect the people and make them feel safer, when they have concerns or fears, from everything such as high crime rates all the way to dog bites... there are different ways to do it...and that a dog that is dangerous does not mean that the entire breed is also dangerous...there are other factors involved.
How the owners live and raised the dog, his environment, how he was trained, etc and this all comes together...it is not automatically an entire breed. (Smart judges!!)
The judges said, the polititians must not only protect the public and make them feel secure, they must ALSO take care of the dog owners as well.
Two studies were presented as evidence by the plaintiffs:
The Vet. School in Hannover tested over 500 dogs in their temperament test.(The 5th study Rudi and I are using in our trial). Of that number, only 7 dogs failed...the majority of them were Cat. 2 dogs, mainly Rottweilers and Dobermans. The Cat. 1 dogs, (Bull Terrier, Am Staff and Pitbull) ranked from very good to excellent.
Also introduced was the temperament test done by Dr. Feddersen-Petersen. She tested 207 dogs and only 1 failed. (Another expert we have for the Bull Terrier)
These were the main points brought up I think are extremely important. Though the main reason the ordinance was thrown out, was because the ordinance was hooked onto a law that protects citizens from atomic bombs, terrorism, etc. and was not legal to attach the dog ordinance onto it. Also, they said an ordinance is not a way to protect the people from dangerous dogs...a law must be made. The court brought up some valid arguments that will make it difficult for the Lower Saxony Agriculture Dept. to make a new law as draconian as it was last year. They stated in their judgement that one cannot ban a breed over the mistakes of one dog.
I saw this trial as a revelation...first it set a precident in that the court told the other regions to take note, since all but two German states have ordinances in place, instead of dog laws. Second, it let Rudi and I see how they will possibly handle our trial when it reaches Berlin early next year, and what the judges were looking for in the way of proof and scientific fact. It also proved what we have known, that the government has nothing except what they have read in some books. Not one dog expert spoke on behalf of the government.
Also, the lawyer we retained for the Bull Terrier trial, is the same lawyer for the German Rottweiler Club and the one who actually pointed out to the judges that the dog ordinance was attached to a law, un-lawfully. After watching him all day in Berlin, we feel very secure in the decision we made. One of the plaintiffs for the Rottie club is also a court justice...she had asked collegues who would be the best lawyer in Germany to help her...this man was recommended by people in her court district and now we have seen why. He had the judges attention and actually swayed most of the arguments at this hearing.
On an end note, the chief justice raised the question of German Shepherds. He asked the government witness, how is it the the GSD was not on the list, with over 25,000 of them in Lower Saxony and a high incident of bites, but the one Tosa Inu registered is on the list.
The gov. replied the GSD has been around a long time and the people are comfortable with them and accept the aggression scale. The judge then said, 'So...it is like the Masai tribesmen in Africa...one is not really a man until he fights a lion. The same as in Germany, you have not gone from boyhood to manhood, unless you are bitten by a German Shepherd.'
Everyone was laughing.....except the gov. witness. He looked confused and said, 'Uh, excuse me Your Honor, but I am afraid I don't understand what you are asking me'.
It was classic.
I feel like this court is on the right track. It is up to us, in regards to the Bull Terrier, to make sure homework is done and not a stone is left uncovered for this court. If you come prepared, with scientific data to back up your case, you have a damn good chance to succeed here. We also now know that the governments hands are empty. Once we can succeed, it will be easy for the Staffordshire and other breeds at risk to follow the same route.
Cathie