CHARLESTON – The West Virginia Supreme Court of Appeals has overturned an order that was for the destruction of a pit bull that bit a child in 2014.

Justice Brent Benjamin authored the majority opinion. Chief Justice Margaret Workman and Justice Allen Loughry concurred in part and dissented in part. Loughry authored his concurring and dissenting opinion.

Wayne Circuit Court had ordered that Tinkerbell, a female pit bull terrier, be destroyed pursuant to West Virginia's vicious dog statute, after she injured a neighbor child who was playing in the yard of Michael Blatt and Kim Blatt, the owners of Tinkerbell, according to the June 16 opinion.

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 § August 21, 1920," the opinion states. "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, according to the opinion.

"Consequently, we reverse the circuit court’s destruction order," the opinion states.

An 8-year-old, identified as L.L., was injured by Tinkerbell when L.L. was playing in his neighbors' yard. The state brought charges against the Blatts, alleging that they violated W.Va. code 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 on June 17, 2014, and June 30, 2014, and, although the circuit court found the Blatts were not guilty of harboring a vicious dog, it nonetheless ordered the destruction of Tinkerbell, finding her to be vicious.

The Blatts adopted Tinkerbell from a rescue organization, where she had previously lived with the owner of the organization after being rescued at 6 months old. Tinkerbell was very high energy, but had no problems with children and was very loving.

After the Blatts adopted her, Tinkerbell was regularly with the Blatts' 9- and 6-year old children and slept in bed with the children. Kim Blatt testified that Tinkerbell also interacted with several of her nieces and nephews and that she had never witnessed Tinkerbell display any aggressive behavior.

On March 31, 2014, L.L. and his sister were playing together in the Blatts' side yard with the Blatts' two children and, during this time, Tinkerbell was confined to the inside of the house and the fenced-in front yard.

When Michael Blatt's mother arrived at the house, she left the fence open and Tinkerbell ran out and went to where the children were playing. When she found the ball the children were playing with, she began to bury it and L.L. went to get the ball from her.

As the Blatts' 9-year-old, identified as N.B., testified, Tinkerbell "has no hands, so she used her mouth. She nipped .. to get the ball down," according to the opinion.

After Tinkerbell bit L.L., he held his hands against his face, which was bleeding, and cried for his parents. Tinkerbell ran into the house and hid under the bar stools, according to N.B.'s testimony.

Tinkerbell was seized by Animal Control Officer Phillip Hickey with the Huntington-Cabell-Wayne Animal Shelter, who stated that Tinkerbell did not appear to be aggressive.

The court entered an order ordering Tinkerbell's destruction on July 7, 2014.

"Upon reviewing the facts and circumstances surrounding the bite in this case, we conclude that they do not support the circuit court’s determination that Tinkerbell is dangerous within the meaning of W. Va. Code § August 21, 1920," the opinion states. "The facts do not establish satisfactory proof that Tinkerbell exhibited behavior outside that which might be expected of a dog during play."

While this incident clearly illustrates that Tinkerbell — or any dog — can cause harm, the court does not believe that the facts in the record establish the likelihood that Tinkerbell poses such a risk of future harm to the public that the risk would warrant her destruction.

"To the extent that the circuit court determined otherwise, the court has erred," the opinion stated.

In his concurring and dissenting opinion, Loughry stated that "from the majority’s coign of vantage, the citizens of this state do not deserve the same protection from vicious or dangerous dogs that is enjoyed by cows, goats, pigs and sheep."

"Once again, the majority grants clemency to a dog that the lower court found to be vicious and dangerous," Loughry stated.

Loughry stated that he has very fond memories of his childhood companion and faithful dog, Bozo, and understands that pets often become members of one's family.

Such feelings and emotions, however, should not prevent the members of the Court from considering the facts of this case in an objective fashion rather than under the penumbra of sentiments attached to their own pets.

"As discussed more fully below, the dog in Robinson was involved in an incident within months of the majority’s decision in that matter, which only serves to heighten my already grave concerns as to the potential serious and adverse consequences of the majority’s decision in the case at bar," his opinion states.

Loughry stated that unlike the majority, his love for animals does not blind him to the lamentable reality that some dogs are dangerous, vicious and inflict serious injuries – and even death – upon innocent victims.

"For these reasons, I respectfully concur in the majority's holding that a magistrate or circuit court need not determine that a crime has been committed under West Virginia Code § August 21, 1920 to proceed at its discretion to order the destruction of a dog under that statute," his opinion states. "I dissent from the majority’s decision to reverse the circuit court’s July 7, 2014, order, which I believe is both legally and factually sound."

Michael Blatt and Kim Blatt were represented by Charles K. Garnes Jr. of Campbell Woods.

The state was represented by Attorney General Patrick Morrisey and Assistant Attorney General Derek A. Knopp.

W.Va. Supreme Court of Appeals case number: 14-0757

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