- Associated Press - Wednesday, June 17, 2015

CHARLESTON, W.Va. (AP) - Magistrates and circuit courts in West Virginia cannot assume a dog is vicious and order its destruction because of its breed, the West Virginia Supreme Court has ruled.

West Virginia’s vicious dog law does not contain an assumption that a specific breed is vicious or dangerous, the court said in a split opinion written by Justice Brent Benjamin.

“Thus, a circuit court or magistrate is limited to considering a dog’s past behavior in determining whether that dog poses a risk of future harm to the public such that the risk warrants exercising the State’s police power to destroy the dog,” Benjamin wrote.

Tuesday’s opinion overturned a Wayne County Circuit Court judge’s order requiring the destruction of a pit bull named Tinkerbell that bit a 9-year-old boy March 31, 2014.

Tinkerbell’s owners, Michael and Kim Blatt, were acquitted of charges that they knowingly owned or kept a dog they knew was vicious or dangerous after a bench trial in June 2014. In a related proceeding, the judge found that Tinkerbell was vicious and dangerous. The judge said courts generally accept that a pit bull terrier or a mixed breed of pit bull terrier is inherently vicious and unpredictable.

The boy was bitten while playing in the Blatts’ backyard with his sister and the couple’s two children. The Blatts’ 9-year-old son testified that Tinkerbell accidentally bit the boy while trying to get a ball he was holding.

“Surely the Legislature, in enacting W.Va. Code 19-20-20, did not intend to deem every dog as dangerous for engaging in behavior that is a part of its inherent nature: biting,” Benjamin wrote.

Charles Garnes, the Blatts’ lawyer, did not immediately return a telephone message Wednesday seeking comment.

Justice Allen Loughry and Justice Margaret Workman concurred with the majority’s finding that magistrate and circuit courts do not have to determine a crime was committed to order a dog’s destruction. But they dissented from the reversal of the euthanization order for Tinkerbell.

A dissenting opinion written by Loughry said the court’s majority “is simply wrong to suggest that the circuit court was making baseless conclusions regarding pit bulls.”

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