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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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