Ohio Supreme Court Upholds Breed Discrimination

In a 7-0 decision written by Chief Justice Thomas J. Moyer, the Ohio Supreme Court reversed the finding of the Ohio Court of Appeals that Ohio state law R.C. 955.22 and 955.11(A)(4)(a)(iii) and Toledo Municipal Code 505.14(a) are unconstitutional because they define vicious dogs to include pit bulls. A copy of the opinion can be foundin Pending Cases.

Ohio is the only state that has declared dogs known as pit bulls are "vicious" for no reason other than their breeds. Ohio Rev. Code Sec. 955.11(A)(4)(a)(iii). Vicious otherwise refers to a dog that (i) Has killed or caused serious injury to any person; (ii) Has caused injury, other than killing or serious injury, to any person, or has killed another dog. Ohio Rev. Code Sec. 955.11(A)(4)(a)(i), (ii). See also Ohio Rev. Code Sec. 955.22(A)

In the case of in the case of City of Toledo v. Tellings, the following laws were at issue: Ohio Rev. Code Ann. § 955.11(A)(4)(a)(iii) which includes in the definition of "vicious dogs" "a breed that is commonly known as a pit bull dog." Toledo, Ohio, Code § 505.14 which limits ownership of pit bulls to only one per household and requires liability insurance and muzzles when they are in public for "vicious dogs" which by definition include pit bulls.

The Ohio Supreme Court found, "Despite the special relationships that exist among many individuals and their dogs, dogs are personal property, and the state or the city has the right to control those that are a threat to the safety of the community: [L]egislatures have broad police power to regulate all dogs so as to protect the public against the nuisance posed by a vicious dog."

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. 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 Court concluded, "[P]it 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 dog.The statutes and the city ordinance are rationally related to serve the legitimate interests of protecting Ohio and Toledo citizens." The Court also found "the term ‘pit bull’ is not unconstitutionally void for vagueness." The Court then rejected that pit bull owners should be entitled to notice and a hearing on any determination a dog is a pit bull.

Interestingly, one justice, Justice Maureen O’Connor, agreed with the judgment but said pit bulls are not vicious because of breed. In a separate concurring opinion, the justice wrote, "Almost all domestic animals can cause significant injuries to humans, and it is proper to require that all domestic animals be maintained and controlled. Laws to that effect are eminently reasonable for the safety of citizens and of the animal. Because the danger posed by vicious dogs and pit bulls arises from the owner’s failure to safely control the animal, rational legislation should focus on the owner of the dog rather than the specific breed that is owned. According to the evidence presented at trial, though, [t]he dogs were family pets and had no history of aggressive or unlawful behavior."

The lower court pointed out, "Much of the evidence was presented to show 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 into 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 shelter were adopted out without hesitation. Karla Hamlin testified that some pit bulls taken into Lucas County Dog Pound exhibited aggressive behavior, [but] 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 fight than other dogs.

"Dr. Brisbin, along with other experts, testified that pit bulls do not have locking jaws. This information is based on actual dog dissections and measurement of their skulls, concluding that their jaw muscles and bone structure are the same as other similarly sized dogs.

"Recent statistics from reports provided 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."

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.

A Lawsuit Challenges The Constitutionality Of Denver’s Pit Bull Ban

A lawsuit has been filed in federal court in Denver that challenges the Denver pit bull ban.

Denver bans pit bulls defined as “any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits” of these breeds. Denver Mun. Code §8-55

The ordinance makes it unlawful to “own, possess, keep, exercise control over, maintain, harbor, transport, or sell” any pit bull dog within the city. Denver Mun. Code §8-55

The ban was first enacted in 1989 but because of a state law passed in 2004 that banned breed specific legislation, Colorado Rev. Stat. §18-9-204.5(5)(b), Denver suspended enforcement of its pit bull ordinance. Enforcement of the pit bull ban resumed on May 9, 2005 when a court ruled the city and county of Denver could enforce the ban.

According to the Complaint filed in this case since reinstatement of the ban on May 9, 2005, the city has killed at least 1,100 dogs believed to be pit bulls or dogs possessing the majority of physical traits of those breeds. Some estimates place the death toll much higher, at least 2000 or more.

Denver Assistant City Attorney Kory Nelson, a proponent of the ban has insisted pit bull attacks are “more likely” to hurt someone seriously than other dogs.

Two of the plaintiffs, pit bull owners, Sonya Dias and Hillary Engel, were forced to leave Denver with their dogs because of the ban. Neither dog had ever threatened or hurt anyone or another animal.

Dias rescued 3-year old Gryffindor in Griffin, Georgia, after “finding him chained and bearing signs of abuse, including possible use as a “bait” animal by dogfighters”. She moved from Denver rather than surrender him when the ban was reinstated.

In Hillary Engel’s case an animal control officer threatened to seize the dog, Cysco, an 8 year old. Ms. Engel immediately contacted Animal Control and was advised to submit Cysco to an evaluation if she had any doubts about whether Cysco was prohibited under the Pit Bull Ordinance.

On May 9, 2005 Ms. Engel took Cysco to Animal Control for the evaluation. The evaluation was conducted by three individuals said to be “experts” in identifying animals prohibited under the Pit Bull Ordinance.

Following the evaluation, Ms. Engel was informed by an unknown Animal Control official that although Cysco was “beautiful and friendly, she looked too much like a Pit Bull to remain in Denver”. However, the official gave Ms. Engel 48 hours to remove Cysco from Denver.

A third plaintiff, Sheryl White, claims Sherman, her two year old pit bull, was seized by an Animal Control officer who was responding to a neighbor’s report that she had a pit bull dog. Sherman also had never displayed menacing or threatening behavior; he had never hurt anyone or another animal.

Ms. White later tried to see her dog at the city shelter but was not allowed to do so. Though the ordinance does not require this, to remove the dog from the shelter, she and her husband, Dana White, were required to bring a third person who agreed to take possession of the dog and remove him from the city.

On December 23, 2005, Ms. Lauren Krieger signed a form attesting to her willingness to remove Sherman from Denver.

Mr. White was also required to sign a form stating: “I, Dana White, in consideration for the release of my pitbull dog from the Division of Animal Control do hereby agree to immediately remove the pit bull dog from the city and county of Denver.”

Mr. White was then required to sign a second form stating that “I, Dana White, . . .agree that Sherman, black-white, male, is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or exhibits the majority of physical traits of any (1) or more of the above breeds.” After the signature block, the form states, “Note: signing this document waives your right under D.R.M.C. §(f) to contest the determination that this animal is a pit bull.”

Sherman was released and removed from Denver.

The Whites requested a hearing anyway to challenge the determination Sherman was prohibited by the ordinance. Based on evaluations by three Animal Control employees, the hearing officer determined Sherman to be a prohibited animal under the Pit Bull Ordinance. Animal Control refused to provide the Whites with copies of the evaluations.

After charges for violating the ordinance were dropped, Ms. White returned to Denver with Sherman.

The plaintiffs claim the City and County of Denver violate rights to due process by (1) seizing animals without a prior hearing, (2) summarily executing dogs whose owners have one previous violation of the ordinance, and (3) coercing dog owners to waive their rights to due process and self-incrimination before they are allowed to remove seized dogs from the jurisdiction.

The plaintiffs also claim the ordinance is unconstitutionally vague and does not give dog owners fair warning of the prohibited conduct. The plaintiffs point out the ordinance refers to breed standards most people would not be able to identify. After all, even animal control relied on “experts” to decide if Engel’s and White’s dogs were banned by the ordinance. And, the so called experts would not even give Whites their methodology for determining whether a dog is banned. So, how does a dog owner know if he or she is violating the law?

The plaintiffs further allege it is a violation of their liberty and property interests protected by the Fourteenth Amendment to the Constitution for the city to seize and kill dogs that pose no nuisance or threat to the public safety.

The Progressive Law Center has joined the suit which also names as defendants Denver mayor, John W. Hickenlooper, Nancy Severson, Manager of the Denver Department of Environmental Health, Doug Kelley, Director of the Division of Animal Control, and Major Juan Zalasar, the Supervisor of the Animal Control investigators for the Denver Division of Animal Care and Control.

The Plaintiffs have requested certification as a class, claiming they represent persons whose animals were seized by Defendants under the Pit Bull Ordinance after April 8, 2005 and persons who removed their animals from Animal Control after April 8, 2005 and signed self-incriminating statements and/or due process waivers.

You can help! Contact Denver officials and let them know it’s time to repeal the pit bull ban! Click here to find names and contact information for the mayor and council members.

Denver’s Holocaust: Call For An End To The Pit Bull Ban

Thousands of pit bulls and pit mixes have been evacuated from Denver since the city resumed enforcement of its controversial pit bull ban in May, 2005.

What is worse, a recent lawsuit claims at least 1,100 pit bulls and pit mixes have been killed since then as Denver tries to eliminate all pits from the city and county. Some estimates put the death toll much higher at at least 2,000 dogs.

There is no requirement any of the dogs must be dangerous or potentially dangerous. They are banned or killed simply because of their breed.

As the case of Margolius v Denver demonstrates, it is far from clear that animal control and other law enforcement agencies can identify pit bull mixes accurately. Dogs not covered by the ban may have lost their lives because of this vague, overreaching law. In the Margolius case it was proven animal control officers could not identify a “pit bull terrier” beyond a reasonable doubt under the Denver ordinance which includes along with the banned purebred "any dog displaying the majority of physical characteristics of any of these breeds".

As with most breed specific legislation Denver adopted its pit bull ordinance in response to injuries caused by dogs identified as pit bulls. In Denver’s case 2 attacks precipitated the passage of an ordinance banning all pit bulls. A copy of the Denver ordinance, Section 8-55 of the Denver Revised Municipal Code, can be found in Animal Law Coalition’s Laws.

On July 24, 1989, the Denver City Council introduced D.R.M.C. § 8-55 Pit bulls prohibited. The ordinance was passed on August 1, 1989 and signed by the mayor, Frederico Pena, the following day. Almost no time for debate and study or consideration of real solutions. Some amendments were later passed and the final ordinance went into effect October 27, 1989. The state Supreme Court has not yet had an opportunity to decide if the ban is constitutional.

Legal Challenges To The PIt Bull Ordinance

There have been lawsuits challenging the ordinance. In fact, the ordinance has been subject to litigation since it passed in 1989. Lawsuits were consolidated in the case of Colorado Dog Fanciers v. Denver were brought in Denver District Court. The plaintiffs sought an injunction against enforcement of the ordinance and a declaration the ordinance violated the plaintiff’s constitutional rights.

On June 28, 1990, the Denver District Court issued a written decision upholding Denver’s pit bull ordinance, stating, “This Court has no authority to substitute its own judgment regarding the wisdom, desirability or ultimate effectiveness of the Ordinance.”

The District Court found there was a rational basis for the differential treatment of pit bulls, stating: “It cannot be proven that pit bull dogs bite more than other dogs. However, there is credible evidence that pit bull dog attacks are more severe and more likely to result in fatalities.”

The District Court did find that the burden of proof under the ordinance was improperly placed on the dog owner and should be on the city. The plaintiffs filed an appeal of the District Court’s decision with the Colorado Supreme Court, and the City cross-appealed on the issue of the burden of proof in the civil administrative hearing.

On November 12, 1991, the Colorado Supreme Court upheld the constitutionality of the Denver ordinance. The decision is reported at 820 P.2d 644. The Court found the determination of whether the dog is a pit bull is litigated during a civil impoundment hearing; the city is not required to prove beyond a reasonable doubt the dog is a pit bull in that hearing. Nor can the finding be used in a criminal trial brought against the owner.

The Court also determined the owner is not entitled to a pre-impoundment hearing on the issue of whether the dog is a pit bull.

The Court agreed with the City that scientific evidence was not necessary for a finding that a dog is a pit bull. There is no violation, said the Court, of the right to substantive due process as a result of the use of unscientific evidence.

The Supreme Court rejected the ordinance was overbroad because it treated all pit bulls and substantially similar dogs as inherently dangerous. The court found the argument inapplicable. The Court pointed out simply because a government regulates one “hazard” does not mean it must address every danger. The court also rejected the ordinance was constitutionally vague. The court found the definition of “pit bull” gave dog owners enough warning to know whether they are violating the law.

With respect to the equal protection argument, the Court noted, “[P]it bull attacks, unlike attacks by other dogs, occur more often, are more severe, and are more likely to result in fatalities. The trial court also found that pit bulls tend to be stronger than other dogs, often give no warning signals before attacking, and are less willing than other dogs to retreat from an attack, even when they are in considerable pain. Since ample evidence exists to establish a rational relationship between the city’s classification of certain dogs as pit bulls, and since there is a legitimate governmental purpose of protecting the health and safety of the city’s residents and dogs, the trial court correctly concluded that the ordinance did not violate the dog owners’ right to equal protection of the laws.”

The Court also found the ordinance was not a taking without due process of law. The Court observed, “Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the State, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens….Here, the legislative exercise of police power was legitimate since it was reasonably necessary to preserve and protect the public health, safety, and welfare”.

Home Rule

On April 21, 2004, Colorado Rev. Stat. §18-9-204.5(5)(b) became effective. Under that law Colorado municipalities and counties are prohibited from passing breed specific legislation. In the wake of this law Denver suspended enforcement of its pit bull ordinance.

Denver did, however, then file the case entitled City & County of Denver v. State of Colorado to challenge the new law prohibiting breed specific legislation. In City & County of Denver v. State of Colorado, the Court ruled the Denver ordinance, D.R.M.C. §8-552 which bans pit bulls, was not pre-empted by the passage of §18-9-204.5(5(b) and is valid under the State’s Home Rule Amendment, Art. XX of the Co. Constitution.

In other words, the new law banning BSL was held not to be the source of Denver’s authority to ban pit bulls; it was also held Denver has a right to pass and enforce ordinances on matters of local concern apparently regardless of state law.

The court did find the ordinance is invalid insofar as it restricts the inter-city transportation of pit bulls. People would be allowed to transport pit bulls from a place outside of Denver through the city as long as the dogs stayed in the vehicle.

The court in that case then held a hearing in April, 2005 on whether since the original 1990 ruling upholding the ordinance, there have been sufficient changes in the study of animal behavior that establish there is no rational basis to justify the pit bull ban.

At the conclusion of the evidence on April 7, 2005, Denver District Court Judge Martin Egelhoff issued an oral ruling from the bench. The Judge found that the State failed to provide new evidence to undermine the earlier ruling. The judge found the State failed to prove beyond a reasonable doubt there was no rational basis for the pit bull ban.

A Debate And Where The Ban Stands Now

On April 8, 2005, the City & County of Denver announced that it would resume enforcement of its pit bull ordinance beginning May 9, 2005. And it has enforced the ban since that time.

Colorado State Representative Debbie Stafford (R-40), who has long opposed the Denver pit bull ban, explained there was little point in pursuing an appeal at that time of the court’s ruling. She explained there was no enthusiasm in the Attorney General’s office for an appeal. She said opponents of the ban would have risked a loss with an appeal at that time in view of the attitude of the Attorney General’s office.

Thus, as it stands, the Colorado Supreme Court has never decided whether Co. §18-9-204.5(5(b), the anti-BSL law, pre-empts the State’s Home Rule Amendment, Art. XX of the Co. Constitution. The Colorado Supreme Court has never decided whether the District Court was correct in finding the Denver pit bull ban is constitutional.

Kory Nelson, Assistant City Attorney for the Denver City Attorney’s office is quoted, saying, “The fact we haven’t had fatal attacks in years indicates (the ban) may be working.” Mr. Nelson’s remark is interesting in that since 1986 there have been no dog-bite fatalities in Denver during periods when the city enforced the ordinance; neither have there been in Portland, Oregon or Dallas, Texas, both of which had a dog-bite fatality in 1986. Neither Portland or Dallas has enacted breed specific legislation.

Assistant City Attorney Nelson recently stated, “The only pit bulls that are humanely euthanized are those that are either abandoned by their owner or are intentionally returned to Denver by a repeat offender. Clearly, these situations are only the fault of the owner. Who would intentionally return large numbers of pit bulls, or even one, to our community, knowing the consequences, both as to their criminal prosecution and the destruction of these pit bulls? Dog fighters who intentionally breed and train their pit bulls for aggressive behaviors that then make these pit bulls too dangerous to interact with other domesticated pets or humans. Who is to blame – these individuals with the intent of using these dogs for illegal acts, including the ultimate acts of cruelty – dog fighting! But according to the HSUS, in 2005, the largest cash prize at a dog fighting tournament was approximately $500,000.00 – there is a large economic incentive for these dog fighters to continue to use the best bred dogs for fighting – the pit bull.”

Click here for more on a current lawsuit pending against Denver that challenges the ban. 

 Contact Denver officials and let them know it’s time to repeal the pit bull ban! Click here to find names and contact information for the mayor and council members.

Canada Supreme Court Refuses to Hear Challenge to Pit Bull Ban

dogsUpdate June 13, 2009:  Last fall, an  appeals court upheld the province of Ontario’s broad pit bull ban. Now, the Canada Supreme Court has refused to hear an appeal from that ruling.

Clayton Ruby, attorney for Catherine Conchrane, a Toronto pit bull owner, argued before the Court that the definition of "pit bull" is unconstitutionally vague and overbroad because it snares dogs that are mixes and mutts or have no pit bull in them at all. He argued the law includes dogs that pose no danger at all to anyone or other animals.

Ruby also said there is no evidence and specifically no scientific evidence to support the Crown’s claim that there is a "reasoned apprehension of harm" from "pit bulls" to justify the ban.

The Appeals Court disagreed that the ban is unconstitutionally vague or overbroad, thus reversing the Superior Court decision described in Animal Law Coalition’s earlier report below.

The Appeals Court also ruled that "pit bulls" are dangerous and unpredictable dogs that have the potential to attack without warning.  The Appeal court said in its decision, "The total ban on pit bulls is not ‘arbitrary’ or ‘grossly disproportionate’ in light of the evidence that pit bulls have a tendency to be unpredictable and that even apparently docile pit bulls may attack without warning or provocation".

The Supreme Court has now refused to disturb that finding. The 3 judge panel gave no reason for its refusal to hear the case.

Michael Doi, attorney for the government,  has called "pit bulls" the "automatic weapon of the dog world.".  

Original report: An Ontario Superior Court Justice struck down parts of the province’s law relating to pit bull breeds.

The court found the definition of "pit bull" is unconstitutionally vague. The definition cannot include "pit bull terriers" though other pit bull breeds including those with "substantially similar" characteristics may continue to be banned.

The court also found the law does not allow use of a veterinarian to prove a dog’s breed.

The ruling did not otherwise affect the law’s broad ban on pit bulls. Clayton Ruby, the attorney for the plaintiffs who were challenging the law, issued a statement explaining, "We saved ‘pit bull terriers’ but not the other breeds".

Justice Thea Herman said in her ruling, "The evidence with respect to the dangerousness of pit bulls, although conflicting and inconclusive, is sufficient, in my opinion, to constitute a ‘reasoned apprehension of harm’.

"Dog ownership is not a right. The impact of these restrictions on individual dog owners is not, in my opinion, disproportionate to the objective of protecting the public."

The justice made clear her job was to determine whether the law was constitutional, not whether it was good policy.

Ontario’s Restrictions on Pit Bulls

American Staffordshire terriers, Staffordshire bull terriers or any other breeds sharing ‘substantially similar’ characteristics are banned in the province of Ontario. Specifically under 2005 amendments to the Dog Owners’ Liability Act (DOLA), no one may own, breed, transfer, import, or abandon pit bulls.

Pit bulls already in Ontario at the time of the ban or born within 90 days of August 29, 2005, have been ‘grandfathered’ and will be allowed to live out their lives.

Owners cannot train the dogs to fight. They must keep them confined and must leash and muzzle their dogs in public. Muzzles must be strong enough to prevent the dog from biting but at the same time allow the animals to breathe, pant, see and drink. Leashes for pit bulls must be no longer than 1.8 meters.

All pit bulls must be spayed/enutered.

Penalties include a $10,000 fine ($60,000 for corporations) or six months imprisonment or both. The court can also order the owner to pay restitution to a victim of a dog bite or attack. The owner is liable for damages regardless of fault. The animal can be taken away or destroyed.