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Scientists are hoping that a new DNA database for dogs will help track — and prosecute — people who breed dogs to fight. But advocates say there’s a risk that the DNA records could be used against the dogs, or against people who adopt them.

The idea is to have a canine version of the FBI’s CODIS — a database of human DNA that is used to connect criminals to crime scenes. But in this case, the DNA might help prove that breeders supplied dogs to a dogfighting ring.

In July 2009, a dogfighting operation was raided in northwest Missouri. Tim Rickey, the senior director of field operations for the American Society for the Prevention of Cruelty to Animals, recalls the scene from that morning.

“I very vividly remember getting out of the truck, and one of the first images I seen was a dog that had one of its legs chewed off in a fight,” Rickey says. “And then the owners just amputated the leg.”

More than 500 dogs were seized from sites across seven states that day, and authorities arrested 26 people. It was the largest dogfighting raid in U.S. history. Rickey says he has heard all of the excuses.

“What their cover is, is that they’re just breeding the dogs,” he says. “They don’t fight the dogs, you know — they’re just breeding dogs because they’re a lover of the breed.”

In the Missouri case, DNA samples from the dogs proved that these weren’t just random pound dogs. They were all related. Prosecutors believed this was evidence that the dogs had been bred to fight.

And that makes sense, says Beth Wictum, who directs the forensics lab at the School of Veterinary Medicine at University of California, Davis.

“Essentially by breeding these dogs they’re creating a subpopulation, almost a new breed,” she says.

“Just as with Labradors, they may try and concentrate certain aspects of pointing or retrieving, there are behavior traits that they’re trying to concentrate within this subpopulation.”

Working with the ASPCA, Wictum is compiling a database called the Canine Combined DNA Index System. So far, it includes about 400 samples taken from inside the cheeks of fighting dogs, including those seized in the Missouri raid. It’s designed to help law enforcement go after not just the fight operators but also the breeders.

Rickey says that’s where the money is.

“For most of these fighters, it all comes down to creating a champion, and then to breed that champion,” he says.

Breeders can get as much as $20,000 for a puppy from a champion bloodline, according to Rickey.

And genetic proof of that bloodline could go a long way in court, he says, by helping convince a jury that a suspected breeder is supplying dogfighting rings across the country.

Still, the dog database makes some people very nervous — among them, Ledy VanKavage, an attorney for the Best Friends Animal Sanctuary in Kanab, Utah.

“I’m not convinced this is a good thing for dogs,” she says.

VanKavage is also the owner of Karma, a pit bull whose DNA is in the database. Karma was a fighting dog rescued from the Missouri bust in 2009. By VanKavage’s account, she Karma has turned out to be a wonderful pet, whatever her DNA might suggest.

“We know that if DNA was the be all and end all, all of Secretariats’ foals would be champions and win the Triple Crown. And they don’t,” VanKavage says.

She said she worries that the genetic information could be like a scarlet letter on the dogs, precluding even the gentle ones from being adopted. Companies could refuse to sell homeowners insurance to people who adopt former fighting dogs. That would be unfair, she says, because as with people, DNA is not destiny.

“We’re not a prisoner of our genetics,” VanKavage says. “Each dog, like each person, is an individual and should be judged on their own character.”

Rickey and Wictum agree on that point — that the DNA records say much more about people who breed dogs than it says about the dogs themselves. In the Missouri dogfighting case, everyone who has been charged with a crime has pleaded guilty.

By ADAM LIPTAK

Published: April 20, 2010 at http://www.nytimes.com/2010/04/21/us/21scotus.html?hp

WASHINGTON — In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

The decision left open the possibility that Congress could enact a narrower law that would pass constitutional muster. But the existing law, Chief Justice Roberts wrote, covered too much speech that depicted lawful activities.

The case arose from the prosecution of Robert J. Stevens, an author and small-time film producer who presented himself as an authority on pit bulls. He did not participate in dogfights, but he did compile and sell videotapes showing the fights, and he received a 37-month sentence under a 1999 federal law that bans trafficking in “depictions of animal cruelty.”

Dogfighting and other forms of animal cruelty have long been illegal in all 50 states. The law applied not to the underlying activity, but to recordings of “conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded or killed.” It did not matter whether the conduct was legal when and where it occurred; under the law, what mattered was whether the conduct would have been illegal where the recording was sold.

The government argued that such depictions were of such minimal social worth that they should receive no First Amendment protection at all. Chief Justice Roberts roundly rejected that assertion, saying that “the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter or its content.”

He acknowledged that some sorts of speech — among them obscenity, defamation, fraud, incitement and speech integral to criminal conduct — have historically been considered outside the protection of the First Amendment. But he rejected the government’s analogy to a more recent category of unprotected speech, that of trafficking in child pornography, which the court in 1982 said deserved no First Amendment protection.

Child pornography, he said, is “a special case” because the market for it is “intrinsically related to the underlying abuse.”

As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.

The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”

“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”

When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.

Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.

“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.

The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.

“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”

Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals” and would serve to protect “depraved entertainment.”