In my municipality, it states that to qualify as an animal "attack" that

Actual physical contact is not required to constitute an attack."

Per § 8.04.045 and that it is merely enough for a an individual to be "worried" according to § 8.24.030 (A)

In this statute "Worrying" includes any animal that may be

...approaching any person in an apparent attitude of attack or any aggressive behavior which would cause a reasonable person to feel they were in danger of immediate physical attack.

This statute seems highly based on the perception of the victim. It seems that anyone with Cynophobia, the most common phobia (with 36% of patients with phobias presenting with this Cynophobia and only 12% to 30% of those Cynophobia seeking treatment clinical treatment) might perceive any scenario, especially scenarios with larger animals to "feel they were in danger of immediate physical attack". This could occur if a dog is fenced in, if the dog is leashed, or if the dog is just excited to meet a new friend and wants pets.

How might the overbreadth doctrine apply or not apply in this scenario given that this is not a situation involving free speech. What legal tests would/could/should be applied to test the constitutionality of this statute?

  • 3
    If you think this is entirely dependent on the victim and subjective, you should first look at what the reasonable person test is.
    – Nij
    Oct 31 '20 at 21:28

This is an objective test

When a law requires “worry” (or any other state of mind), it is usually not the state of mind of the particular person but of a reasonable person in the same circumstances. The law does not ask “Were you worried?”, it asks “Would a reasonable person in your situation have been worried?”

The fact that you have cynophobia is irrelevant if a reasonable person in your circumstances would not have it. Now, if this occurred at a facility for cynophobia treatment then the circumstances change from a reasonable person taken from the general population to a reasonable person who is attending such a facility; in those circumstances the reasonable person would be someone suffering from cynophobia.

By the way, this test (worry or fear of harm) is essentially the same as the criteria of assault between humans.

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