BSL - Victory in Ohio Appeals Court!

[LilacDragon]

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
>
>"[b]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!!!!!!!

[valerie]

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...

[LilacDragon]

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!

[valerie]

Eek! Okay, I was just going to post it I know of some gsd'ers who would be
VERY interested!!