their propensity to attack small animals, documented ferret attacks on human babies, the regulation of ferret ownership by other states, and ferrets' capacity to establish feral populations all militate in favor of classifying the ferret as a wild animal).
Plaintiff offers two affidavits, those of Dr. Kent Marshall ("Marshall Aff.") and Dr. Freddie Ann Hoffman ("Hoffman Aff.") in support of its position. We note as a threshold matter that certain issues confront this Court with respect to the disinterested, unbiased and expert status of these affiants. First, both suggest an actual or apparent conflict of interest. It is not disputed that Dr. Marshall maintains a veterinary practice in Wayne County, New York, site of Marshall Farms USA, Inc.-- a large ferret breeding farm owned by Dr. Marshall's parents. Mansfield Suppl. Aff. P 5. Dr. Hoffman is the Vice-President of the American Ferret Association, Inc., an organization whose purpose is to promote the keeping of ferrets as pets. Hoffman Aff. P1. Even more significant, Dr. Hoffman submits no proof of her professional training or expertise in the veterinary issues at the core of this case. She is a board certified pediatrician specializing in the study of blood and tumors, and is presently employed by the U.S. Food and Drug Administration. Hoffman Aff. P2.
As a substantive matter, the Marshall and Hoffman affidavits, along with the other matter submitted by plaintiff, fail to establish by clear and convincing evidence that the City-- relying upon the evidence discussed supra at 11-18 -- lacks a rational basis for its policy regulating ferret ownership and rabies testing in New York City.
A central tenet of plaintiff's constitutional claims is that pet ferrets pose no greater a danger to public health and safety-- as measured by incidence of bites, severity of injury, and risk of rabies infection-- than pet dogs. Plaintiff's Mem. at 13; Complaint 19-20; Hoffman Aff. PP 45-49, 59-69. The City, however, offers unrefuted evidence in support of the proposition that comparisons between dogs and ferrets with respect to the foregoing public health parameter are inapposite. First, there is reason to suspect that ferret bites are underreported relative to dog bites because of the frequent public health policy requirement that pet ferrets be euthanized if they bite humans as well as the lack of the almost uniform public health requirement that dog bites be reported. Kurtz Aff. P 9; Jenkins, S., "More on Ferrets as Pets," (letter), JAVMA, Vol. 193, pp. 904-905 (1988); Reilly Aff. P 7.
Accordingly, any comparison of rate or frequency of bites as between dogs and ferrets is likely to be skewed in favor of ferrets. Second, the more recent experience of adoption of ferrets in somewhat more significant numbers as domestic pets-- and the lack of sound estimates of the number of pet ferrets-- as opposed to the longstanding and well documented presence of dogs in that role, renders statistical comparisons of biting and rabies incidents between the two species of limited usefulness. See, e.g., Rupprecht Aff. P 9; Reilly Aff. P 7.
Plaintiff's criticism of the California DHS study Pet European Ferrets also falls short. Hoffman Aff. PP 16-34. In addition to the fact that the City states that it has relied on other public health resources and data in reaching its present regulatory stance with respect to ferrets, see supra at 11-13, plaintiff's various methodological criticisms of the DHS study (set forth in Dr. Hoffman's affidavit) simply fail to adequately counter the testimony of Dr. Reilly that the "active surveillance" method used in the DHS report to gather retrospective data on ferret bite incidents is a standard epidemiological method. Reilly Aff. P 6.
With respect to the pathogenesis of rabies in ferrets, plaintiff's own expert, Dr. Hoffman, has acknowledged in her writings on the subject of ferrets as pets that:
The duration of viral shedding following exposure to rabies has not yet been adequately determined in ferrets. Therefore, no quarantine period can be recommended. As a result, once a ferret has bitten a person, local health authorities may require that the ferret be euthanized for rabies testing regardless of immunization status. For this reason, ferret advocates consider the evaluation of the viral shedding time in the context of a well-controlled study to be the single most important issue impacting on the health and welfare of the pet ferret today.
"The Domestic Ferret-- Pet of the Nineties?," FDA Veterinarian, Vol. Vi, No. 3, p. 1 (May/June 1991). Plaintiff submits no such study to this Court, nor furnishes evidence that any of the foregoing national animal public health organizations have been made aware that such data exists and is reliable. The only studies referenced by Dr. Hoffman relating to rabies in ferrets, see Hoffman Aff. PP 67-69, are cited for the proposition that "ferrets, rarely, if ever excrete virus in their saliva." Id. at P 67. Plaintiff, however, does not dispute that these studies involved strains of rabies which are not found in the United States, and thus provide scant support for the unqualified, conclusive, and sweeping declaration made by Dr. Hoffman with respect to the rabies risk posed by ferrets. Rupprecht Aff. P 11. In short, plaintiff fails to dispute the City's evidence in connection with one of its most pressing articulated concerns in regulating ferret ownership-- to wit, the uncertain viral shedding period in rabid ferrets-- and makes no showing with respect to Dr. Hoffman's claims regarding the dangers posed by rabid ferrets.
Finally, plaintiff emphasizes that New York City does not regulate pit bull terriers, which have been shown to be dangerous in certain circumstances, and suggests that the absence of such regulation establishes a constitutional infirmity, under the Equal Protection Clause, of the Health Code regulations relating to ferrets. Plaintiff's Mem. at 13, n. 10; Plaintiff's Supplemental Mem. 15-23. We disagree. As noted supra 7-8, the Constitution does not prohibit underinclusive statutes per se. That the City has chosen, in the field of ownership of animals, to regulate ferrets and not pit bull terriers, simply embodies the permissible exercise of its discretion to address "evils in the same field [which] may be of different dimensions and proportions, requiring different remedies. . The [City] may select one phase of one field and apply a remedy there, neglecting the others." Williamson, supra, 348 U.S. at 489, 75 S. Ct. at 465; see also Garcia v. Village Tijeras, 108 N.M. 116, 767 P.2d 355 (stating, in the context of upholding banning the ownership of pit bull terriers, that "to satisfy equal protection tenets, it is not necessary that the Village address all potential threats from all breeds of dog; instead, the Village was entitled to address a phase of the problem that was of acute concern"), cert. denied, 107 N.M. 785, 765 P.2d 758 (1988).
Plaintiff's arguments with respect to regulation of pit bulls, and, in fact, plaintiff's appeal to the regulation of dogs and cats in general, betray its fundamental misconception of constitutional equal protection and due process analysis as such analysis applies to public safety laws. The Constitution simply does not guarantee owners of ferrets regulatory status precisely equal to the status of owners of other animals, even potentially dangerous animals, but rather mandates only that the decision of the sovereign to regulate them, as well as the nature of that regulation, have a rational basis and not be undertaken and applied arbitrarily and capriciously. Here, the undisputed evidence, discussed supra at 11-18, establishes that the City's ban on ferrets and its summary euthanasia and testing of ferrets that bite humans has ample basis in public health concerns regarding the propensity of pet ferrets to bite, particularly infants and small children, and the uncertain pathogenesis of rabies in domestic ferrets;
therefore, the City's regulation of ferret ownership cannot be deemed arbitrary or irrational.
In our view, the City has furnished ample support for its decision to act upon its concerns with respect to the ownership of pet ferrets by New York City residents. At best, plaintiff has demonstrated that, in light of the lack of exhaustive data on rabies in ferrets and the frequency of ferret attacks relative to other animals, the public health danger posed by ferret ownership is a "debatable" question see Carolene Products, supra at 8, deserving of further study and, perhaps, reconsideration by the City. We observe that ferret advocates have in fact persuaded numerous states to permit ferret ownership (including those areas of New York State outside of New York City) and/or a quarantine process for ferrets involved in biting incidents. See Hoffman Aff. P 10, 74. As the legal authorities set forth supra at 6-11 make clear, however, in such a circumstance the courts are not only ill-advised and ill-equipped to intrude upon the legislative and agency decisionmaking process of a particular municipality, but prohibited from doing so by longstanding judicial interpretation of the Due Process and Equal Protection Clauses of the Constitution. While the genuine and sincere affection of the members of the New York Friends of Ferrets for their pets is evident from plaintiff's submissions in this action, the law is clear that under the undisputed facts before this Court, their recourse lies with the executive agencies and legislative bodies responsible for protecting the health and safety of the public. Accordingly, we grant the motion of the City for summary judgment dismissing the complaint.
Complaint is dismissed.
Dated: New York, New York
February 9, 1995
ALLEN G. SCHWARTZ, U.S.D.J.