REGISTRY, Breed & kennel Club NEWS

by Louis A. Fallon

On August 2, 2007 the Ohio Supreme Court ruled unanimously that breed specific legislation (BSL) is legal in the State of Ohio. The state-wide ruling sets the stage for nationwide legislation outlawing other breeds or types of dogs.

The Ohio Supreme Court reversed the 2006 Ohio Appellate Court decision which found that breed-specific ordinances were unconstitutional. The Ohio Supreme Court stated that two state statutes and a Toledo city ordinance specific to pit bulls do not violate the constitutional rights of dog owners. In a 7-0 decision authored by Chief Justice Thomas J. Moyer, the Ohio Supreme Court reversed rulings of the Ohio 6th District Court of Appeals that had ruled the BSL laws unconstitutional. The Ohio Supreme Court ruling may be read at http://www.supremecourtofohio.gov/rod/newpdf/0/2007/2007-Ohio-3724.pdf. 

This BSL decision is applicable to not only the City of Toledo, but also to the entire State of Ohio, and, sadly, can be looked at and used as a reference decision in the rest of the United States of America.

The 2003 case involved Mr. Paul Tellings of Toledo, who was given a criminal summons by a dog warden for violating a Toledo city ordinance that limits ownership of dogs identified as pit bulls to one such animal per household, and imposes specific muzzling and confinement requirements whenever a pit bull is off its owner's premises. Mr. Tellings entered a plea of not guilty in Toledo Municipal Court. His lawyers subsequently filed a motion to dismiss the charges against him, challenging the constitutionality of Toledo Municipal Code section regarding pit bulls and two state statutes. The challenged provision includes all pit bulls within its definition of a “vicious dog.”

The 2003 trial court conducted an extensive five day hearing on Mr. Tellings lawyers' motion, and eighteen witnesses testified on both sides regarding the traits and characteristics of pit bulls. Those expert witnesses testified for the two opposing sides regarding the physical and behavioral characteristics of dogs, including pit bulls. Dozens of trial exhibits were admitted into evidence and more than 1,000 pages of testimony taken. The witnesses included the talented lawyer Ms. Cindy Cooke, a twenty-year Scottish Terrier dog breeder and United Kennel Club representative testifying on behalf of the dog owner. While there were eighteen witnesses at the trial proceedings there was not one representative on behalf of the AKC.

The 2003 Ohio municipal court found that as a breed, pit bulls are not more dangerous than other breeds but that the evidence supported the city's claim that pit bulls present dangers in an urban setting. Based on that finding, the trial judge issued an opinion upholding the constitutionality of the challenged laws as a reasonable exercise of the government's police powers. Mr. Tellings then appealed to the Ohio 6th District Court of Appeals, which in 2006 reversed the municipal court's decision. Citing the Supreme Court of Ohio's 2004 decision in State v. Cowan, the court of appeals held that the Toledo ordinance and challenged provisions of state law were unconstitutional on the basis that they denied pit bull owners procedural due process. The Ohio Appeals Court also held that the challenged laws denied pit bull owners equal protection of the law, and were unconstitutionally vague because they lacked a precise definition of what dogs qualify as “pit bulls.”

The 2007 Ohio Supreme Court overruled and reversed the 2006 Court of Appeals decision. In rejecting Mr. Tellings' substantive due process and equal protection claims, Chief Justice Moyer noted that the trial court heard extensive testimony regarding problems associated with pit bulls in urban settings, and cited that evidence as grounds to sustain the constitutionality of the challenged statutes.

The Ohio Supreme Court ruling said “The trial court cited the substantial evidence supporting its conclusion that pit bulls, compared to other breeds, cause a disproportionate amount of danger to people,” Moyer wrote. “The chief dog warden of Lucas County testified that: (1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs; (2) pit bulls have killed more Ohioans than any other breed of dog; (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and all other breeds of dogs combined; (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed.... The evidence presented in the trial court supports the conclusion that pit bulls pose a serious danger to the safety of citizens. The state and the city have a legitimate interest in protecting citizens from the danger posed by this breed of domestic dogs.”

The 2007 Ohio Supreme Court decision was unanimous in reversing the lower 2006 Court of Appeals ruling. The owner of the pit bulls has said that he intends to appeal the verdict to the United States Supreme Court. Realistically the cost of a skillful lawyer firm with Supreme Court experience is astronomical and the fact is that the United States Supreme Court only accepts for review about one-percent of the nine thousand appeals submitted to it each year. The odds are against any case even being selected for United States Supreme Court review.

The last United States Supreme Court dog case that comes to mind was decided in 1920, the case of Niccchia v. People of the State of New York, 254 U.S. 228 (1920). Mrs. Nicchia, an affluent resident of Brooklyn, New York had two dogs registered with the AKC. All dogs in the City of New York were required to be licensed. Mrs. Nicchia refused to license her dogs and
said that she had already paid to register the two dogs with the AKC and felt that she did not also have to pay to license the dogs. Her son, a lawyer, represented her in the Brooklyn Municipal Court trial and in the subsequent unsuccessful appeals, with other more experienced lawyers.

Mr. Dennis Sprung, AKC's President said of the Ohio Supreme Court decision "We are disappointed with the Ohio Supreme Court's majority decision, however, the American Kennel Club will continue to educate the general public about the importance of responsible dog ownership while working with legislators at every level to ensure that reasonable, behavior-based dangerous dog legislation is passed and enforced."

The American Society for the Prevention of Cruelty to Animals in New York City and the American Canine Foundation had their lawyers submit legal briefs to the Ohio Supreme Court on behalf of the dog owner. No other dog organization submitted a legal brief to the Court.

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