Subject: TOLEDO CHALLENGE PUBLISHED OPINION OHIO COURT OF APPEALS/
MAJOR BSL
VICTORY !!!!
>
>
>ACF is proud to announce that after years of hard work involving many
>experts and dog owners that for the first time ever a published
opinion has
>been rendered that BSL is clearly unconstitutional on three counts. I
can't
>begin to stress how important this case is and what it means to the
future
>of dog ownership. Harry George who personally worked for three long
years
>on this case with me called me this morning before our attorney could
>reach
>us and said "Glen your not going to believe what happened" I said what
now
>?
>He said "we won" I said we won what ? He said "the Tellings case".
Below
>is the opinion from the Ohio Appeals Court !!!!
>
>
>
>
>Sincerely,
>Glen Bui
>ACF
>
>
>
>
>IN THE COURT OF APPEALS OF OHIO
>
>SIXTH APPELLATE DISTRICT
>
>LUCAS COUNTY
>
>City of Toledo Court of Appeals No. L-04-1224
>
>Appellee Trial Court No. CRB-02-15267
>
>v.
>
>Paul Tellings DECISION AND JUDGMENT ENTRY
>
>Appellant Decided: March 3, 2006
>
>* * * * *
>
>David Toska, Toledo Prosecuting Attorney, and
>
>Daniel R. Pilrose, Jr., Assistant Prosecuting Attorney, for appellee.
>
>Sol Zyndorf, for appellant.
>
>* * * * *
>
>SKOW, J.
>
>{¶ 1} This appeal comes to us from a judgment issued by the Toledo
>Municipal
>
>Court, which found state and local "vicious dog" laws to be
constitutional
>.
>Because we
>
>conclude that the trial court erred as a matter of law, we reverse.
>
>2.
>
>{¶ 2} Appellant, Paul Tellings, who resided in the city of Toledo,
Lucas
>County,
>
>Ohio, owned three pit bull type dogs. The dogs were family pets and
had no
>history of
>
>aggressive or unlawful behavior. A health inspector, checking for lead
>paint, saw the
>
>dogs inside the Tellings residence and reported them to the Lucas
County
>Dog
>Warden.
>
>Subsequently, one dog remained in the Tellings home, one was given
away,
>and
>the third
>
>was confiscated and destroyed by the Dog Warden.
>
>{¶ 3} Appellant was charged by appellee, the city of Toledo, with two
>violations
>
>of Toledo Municipal Code §505.14(a), limits on ownership to only one
pit
>bull per
>
>household, and two violations of R.C. 955.22, failure to provide
liability
>insurance.
>
>Appellant filed a motion challenging the constitutionality of R.C.
955.22,
>
>955.11(A)(4)(a)(iii) which includes pit bulls in the definitions of
>"vicious
>dog," and the
>
>T.M.C. §505.14(a). The court conducted a five day hearing on
appellant's
>motion,
>
>scheduled as follows: July 17, 18, 22, 23, 2003, and November 20,
2003.
>During the
>
>hearing, many witnesses testified regarding the physical and
behavioral
>characteristics of
>
>dogs, including pit bulls. The following experts and other witnesses
>testified on behalf of
>
>appellant:
>
>{¶ 4} 1) Dr. I. Lerh Brisbin, Ph.D. - Senior Research Scientist with
the
>Savanna
>
>River Ecology Laboratory; University of South Carolina Professor:
Expert in
>behavior,
>
>training, and handling of pit bull terriers and their anatomy;
>
>3.
>
>{¶ 5} 2) Dr. Mary Lee Nitschke, Ph.D. -- Canine Behavior; Professor of
>
>Developmental Psychology, Statistics, Pet Behavior Psychology; Service
Dog
>Trainer;
>
>Evaluator for Canine Good Citizenship and American Temperament Test
>Society;
>
>{¶ 6} 3) Dr. Laura Goldman, Ph.D. -- Canine Behavior; Ph.D in
Psychology;
>Pet
>
>and Service Dog Training;
>
>{¶ 7} 4) Glen Bui - B.S. in Genetic Engineering; Vice President of
American
>
>Canine Foundation; Companion Animals Behavior Counselors Association
>member;
>
>{¶ 8} 5) Carl Herkstroeter - B.S. in Chemical Engineering;
>President/founder
>of
>
>and evaluator for American Temperament Test Society;
>
>{¶ 9} 6) Dr. Al Stinson, D.V.M. -- Canine Behavior and Anatomy;
retired
>
>Michigan State University professor; member of Michigan Department of
>Agriculture
>
>Dog Law Revision Committee;
>
>{¶ 10} 7) Dr. George Padgett, D.V.M. -- Canine Geneticist and
Pathologist;
>
>retired Michigan State University professor;
>
>{¶ 11} 8) Dr. Robert Esplin - D.V.M., local veterinary practice in
Lucas
>County
>
>since 1970; Dog behavior counseling with clients;
>
>{¶ 12} 9) Tammy Price -- Former Logan County Dog Warden and Humane
>
>Society Director; Licensed veterinary animal technician; dog training
>instructor; member
>
>of Ohio Dog Fighting Task Force; breeder, owner, exhibiter of American
>Staffordshire
>
>Terriers;
>
>4.
>
>{¶ 13} 10) Harry George -- Exhibitor and judge for American Pit Bull
shows;
>
>Ohio Representative for Endangered Breed Association; American Dog
Breeders
>
>Association Judge and member; member of Ohio Dog Fighting Task Force;
>evaluator of
>
>pit bulls for Morrow County Dog Warden;
>
>{¶ 14} 11) Jed Mignano -- Cruelty Investigator with Toledo Humane
Society;
>
>Criminal Law degree; former employee with Fulton County Humane
Society; and
>
>{¶ 15} 12) Cindy Cooke -- Lawyer; dog breeder; United Kennel Club
>
>employee/representative .
>
>{¶ 16} The state presented the following witnesses:
>
>{¶ 17} 1) Karla Gardner Hamlin -- Veterinary animal technician; 25
year
>
>employee at Lucas County Dog Pound; dog training; member of National
>Association of
>
>Dog Obedience Training, American Association of Pit Dog Trainers,
>International
>
>Association of Canine Professionals;
>
>{¶ 18} 2) Dr. Dale E. Wright - D.V.M., veterinary practice since 1959;
>former
>
>consultant for Lucas County Dog Warden; Ohio State Racing Commission
>employee;
>
>member of Ohio Dog Fighting Task Force
>
>{¶ 19} 3) Tom Skeldon -- Lucas County Dog Warden; B.S. in Agriculture;
>former
>
>zoo director; guard and security dog trainer; military dog handler and
>trainer; member of
>
>Ohio Dog Fighting Task Force;
>
>5.
>
>{¶ 20} 4) Dr. Peter Borchelt, Ph.D. -- Experimental Psychology in
Animal
>
>Behavior; former professor Fordham University; private consultant for
>solutions to
>
>animal behavior problems; attending staff physician at The Animal
Medical
>Center, New
>
>York City; Animal Behavior Society member.
>
>{¶ 21} The following relevant evidence was presented by many
competent,
>wellrespected
>
>experts regarding current, scientific information and data about pit
bulls.
>In
>
>several instances, appellant's and appellee's experts agreed on
similar
>facts regarding pit
>
>bulls, genetics, and behavior, but sometimes disagreed on the
conclusions
>to
>be drawn
>
>from those facts.
>
>{¶ 22} Pit bulls originated in England around the late 1800's.
Although
>initially
>
>used in "bull baiting," pit bulls were also brought to America and
used as
>family
>
>protectors as settlers made their way across the western frontier.
Once
>considered a
>
>sport, pit bulls were also used for dog fighting. During the early
years of
>dog fighting, pit
>
>bulls were specifically selected for non-aggression against humans,
since
>any attack
>
>against a person disqualified the pit bull. Thus, any human-aggressive
pit
>bull was
>
>destroyed and any possibly linked genetic trait was not passed on.
After
>dog
>fighting
>
>became illegal around the 1930's, the rules regarding breedi ng for
>aggression began to
>
>dissolve. Owners involved in today's illegal dog fighting may breed or
>inbreed animals
>
>irresponsibly, in a mistaken attempt to obtain more aggressive dogs.
Dogs
>used in
>
>fighting may exhibit aggressive behavior when taken into custody by
the dog
>warden, due
>
>6.
>
>partly to breeding and partly to training. Although most of the
experts
>agreed that one
>
>could breed for aggressiveness, many testified that because genetic
>transmission of a
>
>behavior trait involved many complicated factors, such breeding
attempts
>were
>
>inefficient. For example, just as a litter of ten greyhounds bred from
two
>faster running
>
>parent dogs might produce only one faster running pup, a litter of pit
>bulls
>from two
>
>aggressive parent dogs was likely to produce only one offspring with a
more
>aggressive
>
>temperament.
>
>{¶ 23} Evidence was presented that there are approximately 52 million
dogs
>in the
>
>United States and that as many as 4.8 million are some form of pit
bull.
>There are two
>
>breeds of registered pit bulls: American Staffordshire Terriers,
registered
>with the
>
>American Kennel Club, and American Pit Bull Terriers, registered with
the
>United
>
>Kennel Club and the American Dog Breeders Association. All three
>associations
>
>condemn dog fighting and will not register a breeder who is discovered
to
>be
>involved in
>
>this activity. Pit bulls are trained for confirmation and
participation in
>other dog trial
>
>events, such as weight pulling and agility. Despite the pit bull's
>reputation for body
>
>strength, in weight pulling competitions, many other breeds do as well
or
>better.1 A pit
>
>bull's musculature is no different than other strong, well muscled
dogs,
>such as Saint
>
>Bernards, bull mastiffs, Rottweilers, and malamutes.
>
>1An American bull dog has the record for most weight pulled - 1,000
pounds.
>The
>
>record for weight pulling, pound-for-pound of body weight, is held by
a toy
>poodle that
>
>pulled 288 pounds in a harness.
>
>7.
>
>{¶ 24} Many other pit bulls are simply unpedigreed family pets, and
some
>are
>the
>
>unfortunate victims of abuse in dog fighting and other criminal
activities.
>Much evidence
>
>was presented that pit bulls which have not been trained to be
aggressive
>are highly
>
>obedient, eager-to-please, good family pets. Jed Mignano, a Toledo
Humane
>Society
>
>cruelty investigator, testified that pit bulls had been taken in at
the
>shelter, did not require
>
>special cages or treatment, and were adopted out without problems. He
>further stated that
>
>he had never been bitten by a pit bull and did not experience them to
be
>"vicious" in
>
>comparison to other breeds. The state's expert, Dr. Borchelt,
testified
>that
>he had never
>
>been bitten by a pit bull, that his investigations for housing
complaints
>against pit bulls in
>
>New York did not reveal any vicious pit bulls, and that most pit bulls
>brought to animal
>
>shelters were adopted out without hesitation. Karla Hamlin testified
that
>some pit bulls
>
>taken into the Lucas County Dog Pound exhibited aggressive behavior,
>chewing
>on mesh
>
>fencing and through aluminum water buckets. She acknowledged, however,
that
>she had
>
>never been bitten by a pit bull and did not think pit bulls, as a
breed,
>were any more likely
>
>to bite or to fight than other dogs.
>
>{¶ 25} Dr. Brisbin, as well as the other experts, testified that pit
bulls
>do not have
>
>locking jaws. Based on actual dog dissections and measurement of their
>skulls, the
>
>evidence demonstrated that pit bull jaw muscles and bone structure are
the
>same as other
>
>similarly sized dogs. No evidence was presented to demonstrate that a
pit
>bull's bite is
>
>any stronger than other dogs of its size and build. He stated that,
>contrary
>to information
>
>8.
>
>relied upon and perpetuated by earlier case law2 and law review
articles,3
>assertions that a
>
>pit bull can bite with a "force of 2,000 pounds per square inch" have
>absolutely no basis
>
>in fact or scientific proof. The testing of dog bite strength has
never
>been
>done, and
>
>would be difficult if not impossible to perform.4
>
>{¶ 26} What is notable is that, like many border collies which have an
>innate
>
>ability to "herd," some pit bulls have the innate ability to "bite and
>hold." Again,
>
>however, this behavior, if demonstrated, can be modified or directed
to
>either appropriate
>
>uses, such as gently holding wild pigs for tagging in a research
project,
>or
>for
>
>inappropriate uses, such as dog fighting.5 Again, not all pit bulls
exhibit
>this behavior,
>
>however, just as all border collies do not want to herd and all
retrievers
>do not show a
>
>desire to retrieve game or objects.
>
>2See State. v. Anderson (1991), 57 Ohio St.3d 168, 172.
>
>3See "Banning the Pit Bull: Why Breed-Specific Legislation is
>Constitutional,"
>
>(1988) 13 U. Dayton L. Rev. 279.
>
>4Dr. Brisbin testified that to measure bite strength, a dog would have
to
>bite on a
>
>steel plate connected to a machine which would then register the
pressure
>exerted. This
>
>type of test was conducted with alligators, but the inherent problem
was
>knowing whether
>
>the animal was exerting full force, or, as the trial court stated, was
just
>being "a slacker."
>
>Likewise, if one could somehow get a dog to actually bite on a metal
plate,
>then the issue
>
>would become whether or not the dog was biting with full force or
would
>bite
>harder on
>
>something more appealing, like meat or a bone.
>
>5Dr. Brisbin stated that he used pit bulls specifically to retrieve
wild
>pigs in his
>
>research projects, because, unlike retrievers who might have more
>difficulty
>"giving up"
>
>the prey, pit bulls were readily trained to gently hold the pigs by
the
>hind
>leg, causing no
>
>injury, and then easily to let go once the pig had been tagged.
>
>9.
>
>{¶ 27} Many pit bulls may also exhibit a behavior or trait referred to
as
>
>"gameness," which, simply stated, is the ability or willingness to
continue
>doing an action
>
>once begun, i.e. "stick-to-it-iveness." Gameness, in itself, is not a
>negative trait. For
>
>example, the ability to carry out duties or trained tasks, despite
injury,
>distraction, or
>
>frustration, is desirable in pit bulls which have been trained to be
search
>and rescue dogs,
>
>protection dogs in the U.S. military, drug sniffing dogs, and therapy
>dogs.6
>In the context
>
>of dog fighting, gameness would be the ability to continue to fight,
even
>while injured or
>
>losing the fight. Although considered positive by the owner-fighters,
>gameness in this
>
>context is considered undesirable to animal cruelty investigators, law
>enforcement, and
>
>dog wardens. Some controversy surrounds whether gameness is purely
genetic
>or is
>
>simply a predisposition which can be enhanced by environmental
factors-the
>"nature
>
>versus nurture" debate. The experts agreed, however, that, just as
some
>greyhounds
>
>exhibit more willingness to chase the "rabbit" than others, some pit
bulls
>have more
>
>"gameness" than others.
>
>{¶ 28} Although some statistics were presented in a Center for Disease
>Control
>
>report, which listed different dog breeds involved with human
fatalities
>for
>the entire
>
>United States, these statistics were from 1979 to 1996. Most experts
>acknowledged that
>
>these were simply bare statistics, without reference to the total
numbers
>of
>dogs in each
>
>6According to testimony presented, one famous pit bull, "Sergeant
Stubby,"
>served
>
>in the military on the front lines during World War I, protecting
soldiers
>and catching
>
>German spies. Sergeant Stubbies was decorated by two presidents and is
>preserved in the
>
>Smithsonian Institute.
>
>10.
>
>breed population. During the hearings, the trial court acknowledged
that,
>since these
>
>numbers were simply bare statistics, without reference to the total
number
>of dogs in each
>
>breed, the statistics had no real relevance or meaning.
>
>{¶ 29} Recent statistics from reports supplied by 44 Ohio county
health
>
>departments indicated very few bites by pit bulls in 2001-2002, with
chows,
>German
>
>shepherds, Rottweilers, and Labrador retrievers at higher overall
>percentages of bites than
>
>pit bulls. No recent statistics on fatal human attacks in the United
States
>were presented
>
>and no evidence was presented of any fatalities involving pit bulls in
>Lucas
>County. In
>
>addition, testimony was presented that the situations and reasons for
any
>dog attacks,
>
>information which was not included in the CDC report, were much more
>important to the
>
>purpose of preventing future injuries than bare numbers. One expert
>testified that most
>
>fatal attacks on children could be attributed to lack of parental
>supervision, rather than
>
>inherently vicious dogs.
>
>{¶ 30} Dog Warden Skeldon acknowledged that even if a dog was 50 per
cent
>pit
>
>bull, if it did not "look like a pit bull," the owner would not be
charged.
>On the other
>
>hand, if a dog did look like a pit bull," it would be classified as a
pit
>bull and the owner
>
>would be subject to the "vicious dog" laws . No definitive description
of a
>"pit bull" was
>
>presented. The warden also acknowledged that there is really no way to
tell
>if a dog is or
>
>is not a "pit bull" and the determination is made by his or a deputy's
>subjective judgment.
>
>Regardless of its parentage or behavior, however, if a dog is l abeled
a
>pit
>bull, the owner
>
>would be charged under the statutes and city ordinance.
>
>11.
>
>{¶ 31} Although Dr. Wright testified he believed that pit bulls have
some
>sort of
>
>"trigger mechanism" which makes their behavior unpredictable and they
give
>off no
>
>warning "signals," he acknowledged that he had done no studies, and
had no
>scientific
>
>data, proof, or other evidence in support of his theory. The other
experts
>dismissed this
>
>theory and agreed that all dogs give off signals which may be ignored
or
>unrecognized by
>
>people. They also stated that, although pit bulls may have some
genetic
>predisposition
>
>for certain behaviors, these behaviors can be easily modified or
controlled
>with training
>
>and environmental socialization.
>
>{¶ 32} The trial court overruled appellant's motion to declare the
statutes
>and
>
>municipal code section to be unconstitutional. The court determined
that
>there was
>
>"little, if any, evidence presented that would indicate that" pit
bulls, as
>a breed, are
>
>dangerous "when trained and adapted in a social situation." The court
found
>that no
>
>statistical evidence indicates pit bulls bite more often than some
other
>breeds, but that the
>
>pit bull's bites "cause a disproportionate number of fatalities
amongst dog
>breeds."
>
>Further, the court also found that the pit bull has been used
extensive ly
>for dog fighting
>
>and by "criminal elements of the population, such as drug dealers, dog
>fighters, and urban
>
>gang members." The court then found that pit bulls create a
"substantial
>and
>real threat to
>
>the safety of the public" because the dogs are found in urban settings
with
>crowded living
>
>conditions and a large number of children.
>
>{¶ 33} After considering the evidence, the court found that pit bulls
are
>not, as a
>
>breed, more dangerous than other breeds. The court concluded, however,
that
>the state
>
>12.
>
>statutes and municipal ordinance were constitutional since the pit
bull
>still presented a
>
>problem in the urban setting. The court noted, however, that
responsible
>owners would
>
>be permitted to present evidence that their pit bulls are not vicious,
>since
>the Ohio
>
>Revised Code only "codifies a Pit Bull as a 'prima facie' vicious
dog."
>After overruling
>
>his motion, the court ultimately found appellant guilty on all counts.
>
>{¶ 34} Appellant now appeals from that judgment, arguing the following
four
>
>assignments of error:
>
>{¶ 35} "Assignment of Error No. 1
>
>{¶ 36} "The trial court erred when it held that Toledo Municipal Code
>§505.14 and
>
>Ohio Revised Code §955.11 and §955.22 were constitutional because the
>statutes violate
>
>the defendant's rights to procedural due process.
>
>{¶ 37} "Assignment of Error No. 2
>
>{¶ 38} " The trial court erred when it held that Toledo Municipal Code
>§505.14
>
>and Ohio Revised Code §955.11 and §955.22 were constitutional because
the
>statutes
>
>violate the defendant's rights to equal protection and substantive due
>process because
>
>there is no rational basis to single out the American Pit Bull terrier
as
>inherently
>
>dangerous.
>
>{¶ 39} "Assignment of Error No. 3.
>
>{¶ 40} "The trial court erred when it held that Toledo Municipal Code
>§505.14 and
>
>Ohio Revised Code §955.11 and §955.22 were constitutional because the
>statutes permit
>
>an improper taking of private property without compensation.
>
>13.
>
>{¶ 41} "Assignment of Error No. 4
>
>{¶ 42} "The trial court erred when it held that Toledo Municipal Code
>§505.14 and
>
>Ohio Revised Code §955.11 and §955.22 were constitutional because the
>statutes violate
>
>the defendant's rights to due process because there is no rational
basis to
>positively
>
>identify a pit bull."
>
>I.
>
>{¶ 43} In his first assignment of error, appellant asserts that R.C.
955.11
>and
>
>955.22 and Toledo Municipal Code §505.14 are unconstitutional because
they
>violate
>
>procedural due process. We agree.
>
>{¶ 44} R.C. 955.22 states that, "No owner, keeper, or harborer of a
vicious
>dog
>
>shall fail to obtain liability insurance with an insurer authorized to
>write
>liability
>
>insurance in this state providing coverage in each occurrence, subject
to a
>limit, exclusive
>
>of interest and costs of not less than one hundred thousand dollars
because
>of damage or
>
>bodily injury to or death of a person caused by the vicious dog."
>
>{¶ 45} Toledo Municipal Code §505.14(a) provides that, "No person * *
*
>shall
>
>own, keep, harbor or provide sustenance for more than one vicious dog,
as
>defined by
>
>Ohio Revised Code §955.11, or dog commonly known as a pit bull or pit
bull
>mixed
>
>breed dog, regardless of age, in the City of Toledo."
>
>{¶ 46} On September 22, 2004, just two months after the trial court's
>decision in
>
>this case was issued, the Supreme Court of Ohio struck down R.C.
955.22 as
>
>unconstitutional, holding that the statute "violates procedural due
process
>insofar as it
>
>14.
>
>fails to provide dog owners a meaningful opportunity to be heard on
the
>issue of whether
>
>a dog is 'vicious' or 'dangerous' as defined in R.C. 955.11(A)(1)(a)
and
>(A)(4)(a)." State
>
>v. Cowen, 103 Ohio St.3d 144, 2004-Ohio-4777, syllabus. In Cowen, the
dogs
>involved
>
>were alleged to have attacked a neighbor while roaming the
neighborhood.
>Id.
>at ¶ 2.
>
>The warden determined that the dogs were vicious and told Cowen she
must
>comply with
>
>the "vicious-dog" law requirements. Id. When she f ailed to comply
with
>certain
>
>requirements, she was found guilty of several violations under R.C.
955.22.
>Id. at ¶ 4.
>
>{¶ 47} In finding that R.C. 955.22 was unconstitutional, the Cowen
court
>reasoned
>
>that an owner had no initial opportunity to dispute a dog warden's
>designation of a
>
>particular dog as "vicious" or "dangerous" as defined by R.C.
955.11(A)(1)
>and (A)(4)(a).
>
>Id. at ¶ 13. Since these designations carried specific additional
statutory
>requirements
>
>under the law, the owner's only way to challenge the initial "vicious"
dog
>designation was
>
>to break the law by non-compliance with the statute. Id. The Cowen
court
>did
>not
>
>exclude any of the definitions, but referenced R.C. 955.11 (A)(4)(a)
in its
>entirety. Id. at
>
>the syllabus. Cowen, supra, at the syllabus. The Cowen court's
reasoning
>was
>based
>
>upon the defendant's inability to challenge the initial finding, not
upon
>which definition
>
>was applied. Id.
>
>{¶ 48} In the present case, when appellant's dogs were classified as
>"vicious," he
>
>also had no opportunity to challenge that finding before being charged
with
>noncompliance
>
>with R.C. 955.22. The trial court's interpretation of the "prima facie
>
>evidence" statutory language was incorrect, since, as Cowen
illustrates,
>appellant did not,
>
>15.
>
>in fact, have an opportunity under the statute to offer evidence that
his
>pit bulls were not
>
>vicious in order to refute the charges. Rather, like the definitions
>applied
>in Cowen, the
>
>R.C. 955.11(A)(4)(a)(iii)7 definition is treated as an unrebuttable
>presumption, that if the
>
>dog warden designates the dog as a pit bull, it is "vicious,"
regardless of
>its training,
>
>behavior, or history. Consequently, we conclude that, pursuant to
Cowen,
>R.C. 955.22 is
>
>unconstitutional as applied to the present case.
>
>{¶ 49} Likewise, we conclude that T.M.C. §505.14(a), which is based
upon
>the
>
>definitions provided in R.C. 955.11(A)(4)(a), violates the
constitutional
>right to
>
>procedural due process. As with R.C. 955.22, the ordinance also
depends
>upon
>the dog
>
>warden's initial determination that a dog is "vicious " because it is
a pit
>bull or looks like a
>
>pit bull, and does not provide any procedure to challenge this finding
>prior
>to being
>
>penalized or charged with non-compliance with the "vicious dog" laws.
As in
>Cowen,
>
>appellant was not provided with an opportunity to either dispute that
his
>dogs were pit
>
>bulls or that they were "vicious." Therefore, under the rationale and
>holding of Cowen,
>
>supra, we conclude that the trial court erred in failing to find that
R.C.
>955.22 and T.M.C
>
>§505.14(a) are unconstitutional.
>
>{¶ 50} Accordingly, appellant's first assignment of error is
well-taken.
>
>7R.C. 955.11(A)(4)(a)(iii) provides that "vicious dog" includes any
dog
>which
>
>"elongs to a breed that is commonly know as a pit bull. * * *."
>
>16.
>
>II.
>
>{¶ 51} In his second assignment of error, appellant argues that the
trial
>court erred
>
>in failing to find that R.C. 955.11 and 955.22 and T.M.C. §505.14(a)
are
>unconstitutional
>
>because the statutes violate appellant's rights to equal protection
and
>substantive due
>
>process since "there is no rational basis to single out the American
Pit
>Bull terrier as
>
>inherently dangerous."
>
>{¶ 52} The constitutional rights which prohibit a state from depriving
a
>person of
>
>"life, liberty, or property, without due process of law" are derived
from
>both the federal
>
>and Ohio constitutions. See Fourteenth Amendment, U.S. Const. and
Section
>1,
>Article I
>
>of the Ohio Constitution. Thus, in a criminal case, substantive due
process
>requires that
>
>before one can be deprived of property, the conduct underlying a
finding of
>guilt must
>
>actually be a crime. State v. Phillips, 11th Dist. No. 2004-T-0006,
>2005-Ohio-6573 at ¶
>
>8. Where a statute under review does not affect a fundamental right,
the
>appropriate level
>
>of scrutiny is the "rational basis" test. Clements v. Fashing (1982),
457
>U.S. 957, 963;
>
>Fabrey v. McDonald Village Police Dept. (1994), 70 Ohio St.3d 351,
354.
>Under the
>
>rational basis test, laws enacted by the Ohio General Assembly are
valid
>"if
>they bear a
>
>real and substantial relation to the object sought to be obtained,
namely
>the health, safety,
>
>morals or general welfare of the public, and are not arbitrary,
>discriminatory, capricious
>
>or unreasonable. * * * The federal test is similar. To determine
whether
>such statutes are
>
>constitutional under federal scrutiny, we must decide if there is a
>rational
>relationship
>
>between the statute and its purpose." State v. Thompkins (1996), 75
Ohio
>St.3d 558.
>
>17.
>
>{¶ 53} A municipality may also exercise its legislative powers for the
>general
>
>welfare of its citizens. Desenco, Inc. v. Akron (1999), 84 Ohio St.3d
535,
>545. Also
>
>viewed under the rational-basis test, a municipal enactment comports
with
>due process "
>
>'if it bears a real and substantial relation to the public health,
safety,
>morals or general
>
>welfare of the public and if it is not unreasonable or arbitrary.' "
Id.,
>quoting Benjamin v.
>
>Columbus (1957), 167 Ohio St. 103, 110.
>
>{¶ 54} Legislation enjoys a strong presumption of constitutionality,
which
>remains
>
>unless the challenging party establishes beyond a reasonable doubt
that the
>legislation is
>
>unconstitutional. State v. Thompson (2001), 92 Ohio St.3d 584, 586;
State
>v.
>Williams
>
>(2000), 88 Ohio St.3d 513, 521. Nevertheless, in exercising the power
of
>judicial review,
>
>no amount of deference to a legislative enactment should force a court
to
>concede that
>
>something is that which it is not. See Marathon Oil Co. v. Bd. of
Zoning
>Adjustment
>
>(1975), 44 Ohio App.2d 402 (finding that a municipal ordinance
declaring
>abandoned
>
>service stations a public nuisance was arbitrary and
unconstitutional).
>
>{¶ 55} Citizens enjoy the property right to own dogs, and the Supreme
Court
>of
>
>Ohio has recognized the special relationship that often exists between
>owners and dogs.
>
>State v. Anderson (1991), 57 Ohio St.3d 168, 170. "To many, a pet dog
is as
>important
>
>and as loved as the human members of the family." Id. Thus, most dog
owners
>consider
>
>their pet to be more than a mere thing, and the ownership of it
constitutes
>a valuable
>
>right. Id. Regardless, however, of this possible, strong sentimental
>attachment, dog
>
>ownership is not a fundamental right. Id. Consequently, when reviewing
>statutes which
>
>18.
>
>regulate dogs and ownership, we must apply the rational-basis test to
any
>due process or
>
>equal protection claims. See State v. Cowan, supra; State v. Anderson,
>supra.
>
>{¶ 56} The object and purpose of all vicious dog laws, including the
Ohio
>statutes
>
>and Toledo Municipal Code, is obviously protection -- to prevent
injuries
>to
>persons and
>
>property by dogs. R.C. 955.11(A)(4)(a) provides that:
>
>{¶ 57} "4(a) "Vicious dog" means a dog that, without provocation and
>subject
>to
>
>division (A)(4)(b) of this section, meets any of the following:
>
>{¶ 58} "(i) Has killed or caused injury to a person;
>
>{¶ 59} "(ii) Has caused injury, other than killing or serious injury,
to
>any
>person, or
>
>has killed another dog;
>
>{¶ 60} "(iii) Belongs to a breed that is commonly known as a pit bull
dog.
>The
>
>ownership, keeping or harboring of such a breed of dog shall be
prima-facie
>evidence of
>
>the ownership, keeping, or harboring or a vicious dog."
>
>{¶ 61} The first two subsections of R.C. 955.11(A)(4) require a dog to
have
>caused
>
>some injury to persons or another dog in order to be classified as
>"vicious." Under R.C.
>
>955.11(A)(4)(a)(iii), however, a dog may be deemed to be "vicious"
solely
>if
>the dog
>
>belongs to the breed commonly known as a pit bull, even if the dog has
not,
>without
>
>provocation, killed or caused injury to any person, or killed another
dog.
>State v.
>
>Ferguson (1991), 76 Ohio App.3d 747, 751. R.C. 955.11(A)(4)(a)(iii)
>purports
>to allow a
>
>defendant dog owner to rebut the state's prima facie showing that his
dog
>is
>"vicious"
>
>even if he admits that the dog in question belongs to the breed commo
nly
>known as a pit
>
>19.
>
>bull dog. Id. In actual practice, however, where the dog is admitted
to be
>a
>pit bull, the
>
>absence of the elements contained in R.C. 955.11(A)(4)(a)(i) and
>955.11(A)(4)(a)(ii)
>
>standing alone, "is insufficient as a matter of law to rebut the
state's
>prima facie showing
>
>that the dog is a 'vicious dog' as defined by R.C.
955.11(A)(4)(a)(iii)."
>Id. See, also, State
>
>v. Browning (Dec. 16, 2002), 5th Dist. Nos. 2002CA42, 2002CA43,
2002CA44,
>
>2002CA45, 2002-Ohio- 6978 (testimony that pit bull dogs which had done
no
>injury or
>
>vicious acts, were not aggressive, were well-behaved, peaceful family
pets,
>and had never
>
>attacked anyone, was insufficient evidence to rebut the "prima facie "
>evidence that the
>
>dogs were "vicious.") Breed-specific laws were enacted because, in the
>past,
>courts and
>
>legislatures considered it to be a "well-known fact" that pit bulls
are
>"unpredictable,"
>
>"vicious " creatures owned only by "drug dealers, dog fighters, gang
>members," or other
>
>undesirable members of society. See State v. Anderson (1991), 57 Ohio
St.3d
>168.
>
>{¶ 62} Over time, however, "well-known facts" are often discarded in
light
>of new
>
>technological, scientific, or social discoveries and the laws change
in
>response to this new
>
>information. For example, in 1981, the Supreme Court of Ohio held that
>expert
>
>testimony was inadmissible regarding "battered woman syndrome" because
it
>was not yet
>
>generally accepted as a legitimate mental condition affecting certain
>women.
>See State v.
>
>Thomas (1981), 66 Ohio St.2d 518, syllabus. Just nine years later,
however,
>the Supreme
>
>Court of Ohio overruled Thomas, holding that "battered woman syndrome
has
>general
>
>substantial scientific acceptance to warrant admissibility into
evidence."
>State v. Koss
>
>(1990), 49 Ohio St.3d 213, syllabus. Another change instigated by the
>discovery and
>
>20.
>
>application of new scientific information is the 2003 Ohio legislative
>enactment which
>
>allows previously convicted persons to submit DNA testing of old
evidence
>in
>
>postconviction proceedings. See R.C. 2953.71 et seq. As scientific
>information advances
>
>and becomes available, courts have a duty to reconsider issues and
make
>decisions which
>
>are supported by the actual evidence presented, instead of relying on
>"common
>
>knowledge" and opinion generated by newspaper sensationalism and
hearsay,
>rather than
>
>accurate, scientific evidence.
>
>{¶ 63} As the evidence presented in this case demonstrates, previous
cases
>
>involving "vicious dog" laws, especially from the late 1980's and
early
>1990's, relied on
>
>what is now outdated i nformation which perpetuated a stereotypical
image
>of
>pit bulls.
>
>See State v. Anderson, 57 Ohio St.3d 168, citing to Singer v.
Cincinnati
>(1990), 57 Ohio
>
>App.3d 1; State v. Robinson (1989), 44 Ohio App.3d 128; Hearn v.
Overland
>Park
>
>(1989), 244 Kan. 638, 772 P.2d 758; American Dog Owners Assn., Inc. v.
Dade
>Cty.
>
>(S.D.Fla.1989), 728 F.Supp. 1533, 1537; and State v. Peters
(Fla.App.1988),
>534 So.2d
>
>760. These cases, due in part to unavailable, scientifically based
evidence
>or expert
>
>testimony about the breed, branded all pit bulls as "vicious" on the
basis
>of what was
>
>known or believed at that time.
>
>{¶ 64} In this case, the trial court was called upon to sort through a
>virtual
>
>encyclopedia of information, testimony and evidence, to discern truth
from
>fiction, and to
>
>consider opinions and conclusions drawn by respected experts by both
>parties.
>
>Extensive, competent and credible evidence was presented by these
experts
>which
>
>21.
>
>showed many of the beliefs and "myths" about pit bulls to be simply
untrue
>and
>
>unsupported by now accepted scientific, genetic, medical, or canine
behavi
>or principles.
>
>When discussing pit bull characteristics, much of the testimony by
>appellee's four
>
>witnesses related to pit bulls which have been trained to fight and be
>aggressive.
>
>Appellant's experts and witnesses, on the other hand, testified
generally
>about the breed
>
>as a whole. They emphasized that the greater population of pit bulls
in the
>United States
>
>are not used for pit fighting, but are well-trained, obedient dogs
used in
>competitions and
>
>as family pets. The trial court noted that all the animal behaviorists
from
>both parties
>
>testified that a pit bull, trained and properly socialized like other
dogs,
>would not exhibit
>
>any more dangerous characteristics than any other breed of dog. After
>considering all the
>
>evidence before it, the trial court agreed, finding that pit bulls, as
a
>breed, are not more
>
>dangerous than other breeds.
>
>{¶ 65} Instead of applying the rational-basis test to this finding,
>however,
>the trial
>
>court expressed its concerns with problems in a crowded, urban setting
with
>pit bulls who
>
>are trained and bred to be aggressive. The trial court also relied on
and
>quoted a 1988
>
>University of Dayton Law Review article8 which was based on old
statistics
>and the
>
>presumption that pit bulls, as a breed, are dangerous, vicious
animals. In
>addition, after
>
>agreeing that bare statistics presented in the case were not relevant,
the
>court incorporated
>
>8"Banning the Pit Bull: Why Breed-Specific Legislation is
Constitutional,"
>(1988)
>
>13 U. Dayton L. Rev. 279.
>
>22.
>
>the law review article's reference to a "disproportionate number of
pit
>bulls " being
>
>allegedly involved in serious attacks. Our review of the record
reveals no
>current
>
>statistics since 1996 were presented to support the notion that pit
bulls
>have continued to
>
>be involved in a "disproportionate number" of attacks or fatalities.
In our
>view, despite
>
>its own factual finding to the contrary, the trial court improperly
relied
>on an outdated,
>
>irrelevant, and inadmissible source of factual information to revive
the
>"vicious" pit bull
>
>sentiment and justify the finding that the statutes and ordinance are
>constitutional.
>
>{¶ 66} We agree that the protection of property and people from
injuries by
>dogs is
>
>clearly a legitimate governmental interest. Nevertheless, this
interest
>must
>bear a rational
>
>or "real and substantial relationship" to the conduct being regulated
by
>the
>statute, in this
>
>case the mere ownership of pit bulls. The state statutes and city
ordinance
>were all
>
>enacted specifically to regulate pit bulls because of their allegedly
>inherently "dangerous "
>
>temperament. Since the trial court found that the pit bull, as a
breed, is
>not inherently
>
>dangerous or vicious, then the interest in protecting the health and
>welfare
>of citizens is
>
>no more rationally related to pit bulls than it is to any other breed
which
>has a potential to
>
>inflict injury on humans. What remains is a regulation and limitation
on a
>specific breed
>
>for reasons unrelated to that breed, but rather related to human
misconduct
>or negligence
>
>in ownership of the breed. The ownership and control of dogs in a
crowded,
>urban
>
>setting is a legitimate concern which relates to all dogs. Once the
finding
>is made that a
>
>specific breed does not inherently represent a greater danger than any
>other
>breed, a law
>
>that regulates that breed on the basis of mere ownership is arbitrary,
>unreasonable, and
>
>23.
>
>discriminatory. Even presuming a legitimate concern that pit bulls are
used
>in dog
>
>fighting or by other criminals, evidence was presented that the
>breed-specific laws have
>
>had virtually no effect in abating or preventing dog fighting or other
>crimes. Therefore,
>
>since the trial court found that pit bulls as a breed are not
inherently
>dangerous, we
>
>conclude that R.C. 955.11(A)(4)(a)(iii) is unconstitutional, since it
has
>no
>real and
>
>substantial relationship to a legitimate state interest.
>
>{¶ 67} T.M.C. §505.14(a), which permits ownership of only one pit bull
by
>Toledo
>
>residents, is based directly on the R.C. 955.11(A)(4)(a)(iii)
definition
>that pit bulls are
>
>"vicious." In other words, the city ordinance sought to prevent a
person
>from owning
>
>more than one "vicious" dog, under the theory that a "pack" of vicious
dogs
>creates
>
>higher risk of danger to citizens. The ordinance does not require
>misconduct
>or injury by
>
>the dog, only the mere ownership of more than one pit bull. Since we
>conclude that there
>
>is no evidence that pit bulls are inherently dangerous or vicious,
then the
>city ordinance
>
>limitation on ownership is also arbitrary, unreasonable and
discriminatory.
>If a citizen
>
>may own more than one non-vicious dog of a particular breed, then
ownership
>of more
>
>than one non-vicious pit bull has no rational, real or substantial
>relationship to a
>
>legitimate governmental interest. Therefore, we conclude that T.M.C.
>§505.14
>is also
>
>unconstitutional.
>
>{¶ 68} In striking down the breed-specific statutes and ordinance, we
would
>
>emphasize that this does not mean that dog owners are free to ignore
their
>duties to
>
>protect others from their dogs, vicious or otherwise. Dogs which are
>dangerous,
>
>24.
>
>aggressive animals, regardless of breed, may create problems in the
>crowded,
>urban
>
>setting. Based on the trial court's findings, however, these problems
are
>attributable to
>
>the actions of the owners, not because pit bulls are inherently
dangerous.
>Even without
>
>the automatic "vicious" designation of pit bulls, owners must be held
>responsible for
>
>actual wrongful conduct of the dog or owner, i.e., an owner who
>inappropriately
>
>encourages or trains a dog to be aggressive, has used dogs illegally
for
>dog
>fighting or
>
>other crimes, or has permitted a dog to behave in an unlawful,
threatening,
>dangerous, or
>
>vicious manner.
>
>{¶ 69} Therefore, we conclude that both R.C. 955.22,
955.11(A)(4)(a)(iii)
>and
>
>T.M.C. §505.14(a), which relied on the now disproved presumption that
pit
>bulls, as a
>
>breed, are inherently dangerous, are unconstitutional since they lack
a
>rational or real and
>
>substantial relationship to a legitimate governmental interest.
>
>{¶ 70} Accordingly, appellant's second assignment of error is
well-taken.
>
>III.
>
>{¶ 71} In his fourth assignment of error, appellant argues that the
trial
>court erred
>
>in finding that R.C. 955.11 and 955.22 and Toledo Municipal Code
§505.14(a)
>were
>
>constitutional because the "statutes violate the defendant's rights to
due
>process because
>
>there is no rational basis to positively identify a pit bull." What
>appellant essentially
>
>asserts is that the statute is unconstitutional because it is too
vague
>when
>practically
>
>applied to identification of pit bulls.
>
>25.
>
>{¶ 72} The void-for-vagueness doctrine requires that a penal statute
define
>the
>
>criminal offense with sufficient definiteness that ordinary people can
>understand what
>
>conduct is prohibited and in a manner that does not encourage
arbitrary and
>
>discriminatory arrests. Kolender v. Lawson (1983), 461 U.S. 352, 357.
In
>order to prove
>
>such an assertion, the challenging party must show that the statute is
>vague
>"not in the
>
>sense that it requires a person to conform his conduct to an imprecise
but
>comprehensible
>
>normative standard, but rather in the sense that no standard of
conduct is
>specified at all.
>
>* * * " Coates v. Cincinnati (1971), 402 U.S. 611, 614. In other
words, the
>challenger
>
>must show that upon examining the statute, an individual of ordinary
>intelligence would
>
>not understand what he is required to do under the law. Id.
>
>{¶ 73} We note initially, that in light of our disposition of
appellant's
>first and
>
>second assignments of error, his fourth assignment of error is
technically
>moot. The facts
>
>of this case, however, compel us to address this assignment. We are
>troubled
>by the lack
>
>of an exact statutory definition of "pit bull," the evidence presented
that
>more than ten
>
>non-pit bull breeds look very much like pit bulls, and the highly
>subjective
>nature of the
>
>identification process. Particularly troublesome is the fact that,
>depending
>on the
>
>zealousness and bias of the local agency, criminal charges have likely
been
>brought based
>
>on purely individual and speculative decisions on whether the jaw of a
dog
>is "massive"
>
>enough or the chest is muscular enough or the brow is broad enough to
be
>designated as a
>
>"pit bull," rather than some other similar breed, such as a bull dog,
>boxer-mix, or bull
>
>26.
>
>mastiff. Although the Anderson court indicated that persons could
easily
>discern that
>
>they owned a pit bull, we respectfully suggest that, some fifteen to
twenty
>years later,
>
>with the greater number of a variety of breeds and mixed breeds, this
no
>longer holds
>
>true. 9
>
>{¶ 74} Moreover, contrar y to the trial court's statutory
interpretation in
>this case, it
>
>is unlikely that the owner of a pit bull could ever overcome the
state's
>"prima facie"
>
>evidence, since, he or she would be required to "prove a negative."
Without
>
>documentation to prove t he dog's breed origins, a non-pit bull owner
could
>easily be
>
>ensnared under the statute, even though unaware that his or her dog
could
>"fit the
>
>description" of his local dog warden agency. Dog Warden Skeldon
addressed
>the
>
>difficulties in identifying pit bulls and acknowledged that some
persons
>who
>obtained
>
>what they thought were pit bulls as pups, later discovered the dogs
were
>not
>pit bulls. On
>
>the other hand, we suggest that a puppy which does not look much like
a pit
>bull, may
>
>exhibit more "pit bull characteristics" after it has become full-grown
and
>a
>part of the
>
>9Based on the information available in that case and at the time,
State v.
>Anderson,
>
>supra stated: "Whether a particular dog constitutes a pit bull is a
matter
>of evidence, to be
>
>determined at trial. Vanater v. South Point, supra, at 1244; State v.
>Robinson, supra; Lima
>
>v. McFadden (June 30, 1986), Allen App. No. 1-85-22, 1986 WL 7474
>unreported. If a
>
>dog possesses none of the aforementioned physical or behavioral traits
such
>that the
>
>owner had no actual or constructive notice that it was a dog commonly
known
>as a pit
>
>bull, then the owner should have no difficulty establishing at trial
that
>he
>or she does not
>
>in fact own a dog commonly known as a pit bull. Pit bulls possess the
>physical and
>
>behavioral traits as discussed in this opinion. A dog lacking in these
>features is not a dog
>
>"commonly known as a pit bull dog" and its owner cannot be convicted
under
>the
>
>statute." (Emphasis in the original.) Under the current status of the
law,
>persons
>
>prosecuted for allegedly owning pit bulls based solely upon a dog
warden's
>subjective
>
>designation will have little success in establishing that a
"look-alike"
>dog
>of unknown
>
>origin is not, in fact, a pit bull.
>
>27.
>
>family. Thus, if an owner did not think his dog looked like a pit
bull, he
>or she might
>
>believe they could not be charged under the law.
>
>{¶ 75} In addition, some owners may have believed as the trial court
did,
>that as
>
>long as their pit bulls were not aggressive or had not caused any
problems,
>the "vicious"
>
>designation could be refuted and the owner would not be subject to the
>additional
>
>requirements or penalties. As noted previously, howe ver, once a dog
has
>been designated
>
>as a pit bull, even evidence that a dog has an unblemished bite
history and
>good, nonaggressive,
>
>obedient behavior is still insufficient to prove that it is not a
"vicious"
>dog.
>
>See State v. Browning, supra; State v. Ferguson, supra.
>
>{¶ 76} Based upon the facts presented, we conclude that the subjective
>
>identification of pit bulls may often include both non-pit bulls or
dogs
>which are not
>
>vicious, to the extent that an ordinary citizen would not understand
that
>he
>was breaking
>
>the law and which would result in the occurrence of arbitrary arrests
and
>criminal
>
>charges. Therefore, since both R.C. 955.11(A)(4)(a)(iii) and T.M.C.
>§505.14(a) are
>
>based upon that identification process, we conclude that they are
>unconstitutionally
>
>vague.
>
>{¶ 77} Appellant's fourth assignment of error is well-taken;
appellant's
>third
>
>assignment of error is deemed moot.
>
>{¶ 78} The judgment of the Toledo Municipal Court is reversed and
>appellant's
>
>convictions are vacated. Appellee is ordered to pay the costs of this
>appeal
>pursuant to
>
>28.
>
>App.R. 24. Judgment for the clerk's expense incurred in preparation of
the
>record, fees
>
>allowed by law, and the fee for filing the appeal is awarded to Lucas
>County.
>
>JUDGMENT REVERSED.
>
>A certified copy of this entry shall constitute the mandate pursuant
to
>App.R. 27.
>
>See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
>
>Arlene Singer, P.J. _______________________________
>
>JUDGE
>
>William J. Skow, J.
>
>CONCUR. _______________________________
>
>JUDGE
>
>Dennis M. Parish, J., dissents.
>
>This decision is subject to further editing by the Supreme Court of
>
>Ohio's Reporter of Decisions. Parties interested in viewing the final
>reported
>
>version are advised to visit the Ohio Supreme Court's we b site at:
>
>http://www.sconet.state.oh.us/rod/newpdf/?source=6.
>
>
YAAAHOOOOOOO!!!!!!!
BSL - Victory in Ohio Appeals Court!
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LilacDragon
- Posts: 1382
- Joined: Wed Sep 28, 2005 4:23 am
BSL - Victory in Ohio Appeals Court!
That's great... do you have another link? The one you show isn't giving
me the Tellings case... at least I don't see it...
me the Tellings case... at least I don't see it...
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LilacDragon
- Posts: 1382
- Joined: Wed Sep 28, 2005 4:23 am
BSL - Victory in Ohio Appeals Court!
That is the only link I have. I think that it will be on that link once they have the "final printed version".
Don't print it out unless you need to! It is 36 pages long!
Don't print it out unless you need to! It is 36 pages long!
Sandi
BSL - Victory in Ohio Appeals Court!
Eek! Okay, I was just going to post it I know of some gsd'ers who would be
VERY interested!!
VERY interested!!