Toledo Law Ruled Unconstitutional - Why, and what's that mean?

Last week, I reported that Toledo municiple judge, Michael Goulding, ruled the city's dangerous dog ordinance was unconstitutional.   The ruling has been greeted with a strange combination of excitement, and confusion, among the animal welfare communities.

The ruling is great, but haven't we already been down this road before?

It sure seems like it -- so what makes this case different?  With that in mind, I'm going to do my best to explain why this case is different from previous cases, and what this may mean for 'pit bulls' in the state of Ohio if the decision stands. I'm going to do this with my usual caveat in these cases:  I am not a lawyer. I didn't even stay at a Holiday Inn Express last night. But I am familiar with all of the precedent cases -- and have sought out a couple of lawyers to be sure I'm on the right path. But PLEASE use this for guidance only, and do not act on it legally without the help of someone who is truly a trained legal professional. Because that I'm not.

So, with that out of the way, let's talk about the case.

In its simplest form,  judge Goulding's ruling essentially declared Toledo's ordinance to be in violation of the constition under two, overarching themes.

1) Due Process for "pit bull mixes and non-pit bull" dogs.

One of the major precedents set forth in prior cases was that restrictions on 'breeds commonly known to be pit bulls" were not void for vagueness because breed standards from the AKC/UKC could be used to identify physical traits for dogs 'commonly known to be pit bulls"; and that 'pit bulls' "possess unique and readily identifiable physical and behaviortrats which are capable of recognition both by dog owners of ordinary intelligence and by enforcement personnel."

In the most recent case, unlike the others, the dogs in question were Cane Corsos, not 'pit bulls."  And because Cane Corsos (and in the case, the judge specifically points out mixed breed "pit bulls" along with Cane Corsos) does not meet the precedents set forth in previous cases because the dogs could not "reasonably" be determined to be pit bulls, because they don't contain enough of the physical and behavioral traits necessary to do so.

Essentially, this ruling now makes breed specific legislation in Ohio for anything beyond 'purebred' American Pit Bull Terriers and American Staffordshire Terriers very problematic -- meaning that they would have to go through all due processes and puts more pressure on cities with laws pertaining to mixed breeds and other breeds, like cane corsos, that declaring these types of  dogs dangerous without due process is "unreasonable and arbitrary."

2) Violation of Home Rule Policy

States have authority over cities....and thus, cities cannot pass laws that contradict state laws. If a state specifically makes something illegal, a city cannot make it legal. And if the state makes something specifically legal, the city cannot make it illegal.

The state of Ohio is the only state to have some form of breed specific legislation - -that calls for owners to have to provide a form of specific containment for a "vicious" dog (which all pit bulls are under the state law) that includes either a pen, fasten or muzzle.  However, the Toledo law mandates muzzling.  Thus, the Toledo law specifically prohibits, say, keeping a 'pit bull' in a pen, which the state law allows -- making the Toledo law unconstitutional because it violates home rule policy.

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What does this all mean? Maybe not much. Maybe a lot. For sure, Toledo is going to have to restructure their law. The good news is that the city has been talking about repealing their BSL anyway and just reverting to the state law...this case will provide them a good reason to do this.

It seems likely that other cities in Ohio that have laws in place that include 'pit bull' mixes or other "pit bull type" dogs will have to provide due process to the people that are accused of having a "vicious" dog.  They may struggle in general upholding prosecuting mixed breeds because the prosecution could be said to be arbitrary under this ruling. This has now made breed identification for anything other than the purest-looking 'pit bull' a huge issue in the state of Ohio.

It also seems that any BSL in the state that doesn't exactly mirror the state law may also be unconstitutional - because the state law stipulates that you can own a 'pit bull' under certain circumstances, any city law that has harsher criteria may be found to be contradictory to the state law.

The reality is that the judge's conclusions may sum up what is best for the cities in Ohio (and elsewhere).  Here is his conclusion:

"The court is aware of the current state of flux in which the law regarding the regulation of dogs finds itself. Certainly this issue has raised great and legitimate concerns at many levels among people  of both care and compassion. Local and state legislative authorities are currently wrestling with amendments to these laws and courts across the state continue to grapple with statutes, ordinances, and cases concerning the subject. Certainly a more uniform, practical and humane method of regulating dogs, which both preserves the safety of the public and focuses on the dangers and misdeeds of irresponsible dog owners, would seem preferable to the status quo." (Emphasis Mine)

Yes, that is one of our judges that is charged with interpreting our laws, that is recommending a dramatic change to the status quo in Ohio for dealing with dogs -- and for the second time in a little over a year, lawmakers have gotten a similar statement from a judge in Ohio.

This ruling could mean very little. Individual cities in Ohio could just continue to fight their constituents and continue to waste tax dollars going to court defending their laws -- making precedents for every single possible scenerio under the law. Or, they could realize that the judge is right, that there are fairer ways to inprove public safety by focusing on careless and irresponsible dog owners and not dog breeds that will free up our court system to deal with other issues and save taxpayer funds defending these ridiculous laws.

Let's hope for the latter.

You can read the entire ruling on the most recent case here. I'd love to hear your thoughts.

Comments

[EmilyS]

my understanding of "home rule" is exactly the opposite of your description! At least in Colorado, the "home rule" provision in the State Constitution grants HR locations the right to make their own laws that might contradict state law. That's part of the basis for Denver's claim that they can have BSL despite the state law against BSL. They have defended their HR rights in a gun case as well (Denver forbids certain ownership that the state law allows.) And it's the message that their City Attorney, Kory Nelson, has been pitching to localities across the country: use home rule to ban pit bulls even if your state has a law against it. http://dogbitelaw.com/pitbullDenver.pdf http://www.celdf.org/HomeRule/DoesmyStatehaveHomeRule/HomeRuleinColorado/COConstitutionArticle20HomeRule/tabid/378/Default.aspx "It is the intention of this article to grant and confirm to the people of all municipalities coming within its provisions the full right of self government in both local and municipal matters and the enumeration herein of certain powers shall not be construed to deny such cities and towns, and to the people thereof, any right or power essential or proper to the full exercise of such right. The statutes of the state of Colorado, so far as applicable, shall continue to apply to such cities and towns, except insofar as superseded by the charters of such cities and towns or by ordinance passed pursuant to such charters." This so makes no sense.. because it basically invalidates state law whenever a jurisdiction decides it wants a differing law. The judge in the most recent ruling on Denver's BSL did not address the HR defense.

[Brent]

Emily,

Again with my "I'm not a lawyer, but this is my point of view" speech, but it appears to me that the biggest differential here is that while the Colorado state law forbids CITIES from passing BSL, the law in Ohio gives rights to CITIZENS to own one a particular way.

If I'm wrong on that I appologize, but that appears, to me, to be the differentiator here.

[EmilyS]

Thanks Brent.. that's a really key difference. Fascinating that one state would grant ultimate rights to government, while another gives it to the people.

[Brent]

Well, now don't give them too much credit -- they weren't giving rights to people, they were trying to take them away -- they just happened to give them rights in the process.

[A Facebook User]

Brent I was interested about the darting of the small dog that die...there is a similar case in Stark County, OH where the deputy darted a "vicious" 7 month old puppy in the neck, hitting a main artery and the dog died almost 11 hours later, when the Warden finally decided to take the puppy to a vet. Do you know what the OHIO laws are on dart gun use on dogs? They are banned in Tennessee, even the Animal Control is not allowed to use them because it is considered not only dangerous but you have to be a certified vet to administer the drugs.

Any info would be greatly appreciated.
Sarah