PIT BULLS PONDERED BY OHIO SUPREME COURT
By: Date: 04/4/2007
The Ohio Supreme Court heard oral arguments today in City of Toledo v. Paul Tellings, testing whether a Toledo city ordinance that singled out pit bulls for special restrictions and controls is constitutional.
Paul Tellings had lost his case at the municipal court level, won on appeal, and the matter is now appealed by the city to the Ohio Supreme Court. Today’s arguments will be followed by a decision within the next 6 to 8 months.
The issues are universal and exceedingly important to dog owners: Mr. Tellings is everyman who owns a dog, and pit bulls, as defined by this ordinance could be almost any dog, as one justice observed during the proceedings.
Mr. Tellings, a Toledo resident owned three pit bull dogs as pets. He was convicted by the Toledo Municipal Court of owning more than one dog defined as vicious and not having at least $100,000 in liability insurance as required by a Toledo ordinance.
Mr. Tellings entered a plea of not guilty in the Toledo Municipal Court and filed a motion to dismiss charges against him on the legal basis that the ordinance and state law regulating “all” pit bulls as “vicious dogs” were unconstitutional. The municipal court ruled in favor of the City.
Mr. Tellings appealed. The 6th District Court of Appeals reversed the municipal court ruling, stating that the Toledo ordinance and challenged provisions of the state law were unconstitutional for violating substantive and procedural due process and the equal protection clauses of the U.S. Constitution. The definition of “vicious dog” was vague.
The City of Toledo then appealed to the Ohio Supreme Court.
Tellings’ position was that the Toledo ordinance singles out owners of one specific dog breed, denying them equal treatment under the law. He argued that the ordinance placed unreasonable restrictions and costs on owners of pit bulls even though such measures are not supported by any scientific data showing that pit bulls are more likely to attack or injure humans than a number of other breeds. Tellings maintained that the ordinance does not fulfill its legislative intent to terminate dog fighting and that it is misguided, ineffective and useless for that purpose because those who participate in the illegal activity of dog fighting will continue to do so using another breed of dog if pit bulls are no longer available.
Highlights of Ohio Supreme Court oral arguments of City of Toledo v. Paul Tellings
The attorneys for the city of Toledo, State of Ohio and Paul Tellings presented 15 minutes per side in oral argument today in this very important case. Mr. Tellings was represented by Sol Zindorf, and Toledo was represented by Adam Loukx who allowed 5 minutes of his time for State Attorney Robert Krummen to present friend of the court arguments in support of the city’s appeal.
The four justices were very interested in the subject matter of this case. Several of the justices had substantial knowledge about dogs. All justices participated in the questions.
Justice Maureen O’Connor stated it that while it could be said that all dogs used in fighting are pit bulls, it is wrong to say all pit bull dogs are fighters. She asked the city’s attorney, Adam Loukx if there were any allegations of dog fighting in this case. Mr. Loukx responded “no.” Judge O’Connor said that the city attorney kept stating the viciousness of the breed was the issue and that she felt the dogs were not naturally vicious, but trained to be that way. She stated that these dogs are known to be lovable family pets brought up with children. The definition of a pit bull statutorily defined by a listing of physical and behavior characteristics was vague. She gave the example of a cross between a poodle and pit bull dog and speculated that the animal could have physical characteristics of a poodle and the behavior of a vicious pit bull dog: then she asked how that animal would be classified by the definition. She asked if that dog would be considered a pit bull dog if it only exhibited fifty percent of the characteristics defined.
Justice Judith Lanzinger asked the Toledo city attorney how he justified singling out an entire breed. He argued that pit bulls have a propensity for viciousness and is the breed choice of dog fighters thus regulation of the breed is permissible and warranted to protect the citizens. Justice Lanzinger said this legislation appears more narrowly tailored to meet a rational basis objective. She stated the ordinance was not a total ban of the breed but was just a regulation or limitation on ownership.
Justice Paul Pfeifer asked how an individual could be a pit bull breeder if only one animal was allowed per household. City attorney, Adam Loukx responded that it would be in violation of the Toledo ordinance to breed pit bull dogs in the city limits. Judge Pfeifer said there are other breeds of dogs that could possess a vicious temperament such as Akitas, Doberman Pinchers, German Shepherd Dogs and others. He said he would cautiously approach any dog he did not know, even a Cocker Spaniel. The Justice agreed that evidence did not prove these dogs were stronger than any other dog of their size and weight and said there are many myths about this breed. The justice discussed the ordinance’s requirement that pit bull owners obtain vicious dog liability insurance and pondered how difficult it might be to find a policy for a “vicious dog.”
Judge Evelyn Lundberg Stratton said if the legislature could regulate alcohol consumption, why couldn’t the state regulate the use of this “product” to protect its citizens? There is clear evidence that this breed of dog is used in ways to be a threat to citizens. Toledo is trying to prevent abuse of this “product.” Sol Zindorf, attorney for Mr. Tellings responded that pit bull dogs are not dangerous. Pit Bulls are only dangerous if they are not properly socialized and treated badly. He further argued that the rational basis test is not met because the law does not prevent what it is intended to do. In this case the ordinance is to prevent dog fighting and injury to others. He further argued the law is not enforceable.
Sol Zindorf, attorney for Paul Tellings stated in his oral arguments that there is no rational basis to enforce the ordinance because there is no evidence that the legislation fulfills its objective to protect the public from a pit bull. There are numerous myths about the dangerous temperament of the breed. He further argued that the physical characteristic that the dog can hold on to something for a longer period of time is a characteristic that law enforcement, and search and rescue professionals desire.
Adam Loukx, City of Toledo Attorney argued that the city was not appealing the issue of the discretionary power of an animal warden, but that, the city was supporting the definition of “vicious dog” and the prima facie evidence that the breed has the propensity to be vicious. He stated the city acted rationally by exercising it police powers by regulating pit bull ownership in the interest of public safety.
Robert Krummen, Ohio State Attorney stated that the ordinance is not breed specific. Justice Pfeifer asked him if the state has legislated a way to contest if your dog has been deemed vicious. Mr. Krummen said no legislation has been proposed to allow a citizen to appeal if their dog has been determined to be “vicious” based upon definition of the law.
Now that the oral arguments have been heard, the Ohio Supreme Court will not make a decision on this case for several months, possibly six to eight. NAIA will provide an update once the court makes its decision.
To listen to the oral arguments go to: www.supremecourtofohio.gov/videostream/archives/2007/#april