State v. Blatt

Citation774 S.E.2d 570,235 W.Va. 489
Decision Date16 June 2015
Docket NumberNo. 14–0757.,14–0757.
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia, Plaintiff Below, Respondent v. Michael BLATT and Kim Blatt, Defendant Below, Petitioner.

Charles K. Garnes, Jr., Esq., Campbell Woods, PLLC, Huntington, WV, for Petitioner.

Patrick Morrisey, Esq., Attorney General, Derek A. Knopp, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

Opinion

BENJAMIN, Justice:

The Circuit Court of Wayne County ordered that Tinkerbell, a female pit bull terrier be destroyed pursuant to West Virginia's vicious dog statute, W. Va.Code § 19–20–20 (1981), after she injured a neighbor child who was playing in the yard of Michael and Kim Blatt. Tinkerbell is the family pet of the Blatts.

The circuit court's decision ordering that Tinkerbell be destroyed relied on a presumption that pit bull dog breeds are inherently vicious. Because extensive debate exists over whether scientific evidence and social concerns justify breed-specific presumptions, we conclude that courts may not, upon judicial notice, rely solely upon a breed-specific presumption in ordering the destruction of a dog pursuant to W. Va.Code § 19–20–20. The adoption of breed-specific presumptions with regard to this statute is the prerogative of the Legislature, not the judiciary. In the absence of a breed-specific presumption, we determine that neither the remaining findings of fact in the circuit court's destruction order nor the facts presented in the record provide satisfactory proof that Tinkerbell must be euthanized. Consequently, we reverse the circuit court's destruction order.

I. FACTUAL AND PROCEDURAL BACKGROUND

Eight-year-old L.L.1 was injured by a dog named “Tinkerbell” (nicknamed “Tink”), a two-year-old female pit bull terrier or pit bull terrier mix,2 owned by L.L.'s neighbors, petitioners Michael and Kim Blatt. The State brought charges against both Mr. and Ms. Blatt, alleging that the they violated W. Va.Code § 19–20–20 by knowingly harboring a dog that is vicious, dangerous or in the habit of biting or attacking other persons. The circuit court conducted two hearings, the first on June 17, 2014, and the second on June 30, 2014, and entered two orders following those hearings. Although the circuit court found the Blatts not guilty of harboring a vicious dog, the court nevertheless ordered the destruction of Tinkerbell, finding her to be vicious. Testimony at the two hearings produced the following evidence.3

In May 2012, an animal rescue organization, River City Bully Buddies, acquired Tinkerbell from a high-kill animal shelter in Mercer County on the recommendation of volunteers at the shelter. Tinkerbell was about six months old when she was acquired by the rescue organization. Tinkerbell lived with the founder of the rescue organization, Capri Billings, and her three minor children from May 2012 until August 2013. Ms. Billings described the dog as “very loving, playful” but that the dog is “very high energy”—a trait Ms. Billings testified is “typical of many dogs.” Ms. Billings also testified that while Tinkerbell was in her family's care, they “never had any problems with her at all.”

The Blatts first met and interacted with Tinkerbell at an adoption event sponsored by River City Bully Buddies. Kim Blatt testified that Tinkerbell was “the greeter” at these events and that the dog was not troubled by children touching her ears and tail. The Blatts later contacted Ms. Billings about adopting Tinkerbell. Before the Blatts were permitted to adopt the dog, the family had an hour-and-a-half to two-hour “meet-and-greet” with Ms. Billings and Tinkerbell to, as Ms. Billings testified, “make sure there's good energy flow.” The Blatts then fostered Tinkerbell for a two-week period to ensure that the dog and the family were a good match. The Blatts ultimately adopted Tinkerbell in August 2013.

In the months that followed, Tinkerbell was regularly with the Blatts' nine-and six-year-old children. The family walked Tinkerbell in the neighborhood on a leash, and the dog slept in bed with the children. Ms. Blatt testified that in addition to spending time with her own children, Tinkerbell also interacted with several of her nieces and nephews. Ms. Blatt stated that the family “never had any problem with [Tinkerbell] and that she never witnessed the dog display any aggressive behavior.

On the afternoon or evening of March 31, 2014, L.L. and his sister were playing together in the Blatts' side yard with the Blatts' two children. The children threw a ball while Mr. Blatt grilled hamburgers on the back porch. During this time Tinkerbell was confined to the inside of the house and the fenced-in front yard. Mr. Blatt testified, “I just had [the dog] in the house. There was really no reason. I just, you know, she was in the house. I had food and I didn't, just didn't think anything of it.” He later stated that the dog had been confined to the house to allow a wound

on her paw to heal.

Upon arriving at the Blatt residence, Mr. Blatt's mother accidently left the front gate open and Tinkerbell got out of the fenced-in front yard. The dog proceeded to run to the back of the house where the family and friends were playing. The dog, which according to Mr. Blatt “loves to fetch and chase balls and sticks,” found a ball the children had been playing with and began to bury it. The Blatts' nine-year-old child, N.B., testified as to what happened next:

Q [Counsel for the Blatts] ... Tell me what you guys were doing.
A [N.B.] Well, [L.L.] was on the ground. Tink came around in the back yard where we all were. She found a ball, popped it, was trying to bury it. Then, [L.L.] tried to go grab it. He was, like, to throw it. But, Tink went up to get the ball. She has no hands, so she used her mouth. She nipped, bit, nipped him to get the ball down. So she actually didn't mean—hurt him a little too much.
Q Okay. She was going after the ball?
A Yeah.

N.B. further explained upon questioning by the State:

And [L.L.] was on the deck, too, but he came down. When he came down, he dropped the ball. I went up on the deck. That's when I was on the deck. And Tink got the ball. Before [L.L.] got the ball, Tink got it. And she popped it, and she was trying to bury it. And the boy grabbed it out of her mouth, went like this (indicating), and the dog tried to get the ball, but she accidently nipped the boy.
....
[S]he was trying to get the ball. He was like this, (indicating), and she was jump—when he was like this, (indicating), Tink got on his shoulders and tried to get the ball down.

When asked about his use of the word “nip,” N.B. said, “It means that she did not mean to bite him. She just wanted to get the ball down.” N.B. was the only eye-witness to the bite who testified; L.L. was not questioned during the proceedings below.

After the dog bit L.L.,4 he held his hands against his face, which was bleeding, and he cried for his parents. Meanwhile, N.B. testified that [Tinkerbell] got down, hunkered down on the ground. Then, she ran right into the house, and she hid under the bar stools.” Mr. Blatt also testified as to Tinkerbell's behavior directly after the bite, stating, “What I observed was, after I heard the scream, I turned to look and see what happened. Everybody rushed over; and Tinkerbell ran in the house and hid under a chair. The back door was standing wide open. She, lickety-split, was gone.”

While Mr. Blatt's mother's husband, a nurse, attended to L.L., Mr. Blatt went to get L.L.'s parents. L.L.'s father, Jason Owen, testified:

Me and my wife were sitting at the computer when a knock came on the door. Answered the door. It was Mr. Blatt. He said, [L.L.] would like to see one of you two guys,” because he was at Mr. Blatt's house playing with the kids. And he said, “My dog got out and it seems like he bumped [L.L.] in the face and, you know, so he would like to see one of you.”
So, my wife proceeded to walk over. And I was standing there. I watched my wife and son come down the driveway. And my wife said, “This isn't cool.” And then when [L.L.] got there, his face was ripped and stuff like that. And a few minutes later my daughter came in screaming because of what happened. She was terrified.
So, at that time, Mr. Blatt was already at home, and I walked over there. I'm, like, “What happened?” I said, “What's going on?” And, like, I said, “Your dog bit my son's face off.” And I think, I believe it was Kim, said, “It was only his lip.” I said, “It was his face.” And then I walked back home, and then we ended up taking him to the hospital.

Mr. Blatt testified:

I was unaware that it was a bite at first. I was on the porch. The kids were over in the side yard. The kid put his hands over his face. Yes, there was blood. I did not see it. So I didn't know what happened. I ran to get the parents, of course.

When asked by his counsel if he was “plotting in some way to minimize or try to stop trouble when [he] told them that the kid had gotten his nose bumped, or whatever,” Mr. Blatt said, “No, sir. I was just trying to get them united. The boy was screaming for his parents.”

L.L.'s mother, Tara Schmidt, testified, “I had somebody come and get me and take [L.L.] to the hospital, because my husband had to stay home with the little kids.” At the hospital, L.L. received five stitches to his upper lip and nine stitches to his bottom lip to close the laceration caused by the bite. Hospital records indicate that L.L. experienced pain and bleeding but that the degree of bleeding was minimal and the degree of pain was minimal. Photographs in the record show swelling and redness around the laceration and an abrasion near L.L.'s right eye.

Following the incident with L.L., Tinkerbell was seized by Animal Control Officer Phillip Hickey with the Huntington–Cabell–Wayne Animal Shelter. Mr. Hickey described Tinkerbell's demeanor as follows: “Quite honestly, the behavior was—it was mild demeanored [sic] when I picked up the dog. I...

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