Florida
American Dog Owners Ass'n, Inc. v. Dade County, Fla.
728 F.Supp. 1533
United States District Court, S.D. Florida,1989
FACTS: Dade County Florida passed an ordinance regulating pit bull dogs. The ordinance requires registration, enclosure or leashing and muzzling of pit bulls. The ordinance defines pit bulls as any dog that substantially conforms to the breed standards as set by the American Kennel Club and United Kennel Club. Plaintiffs, including Robert Sanchez who owns two dogs that may be subject to the ordinance, contend that the ordinance is facially unconstitutional.
ISSUES: Is the definition of pit bull dog in the ordinance so vague that it is a violation of the federal constitution?
HOLDING: No, the ordinance does not violate the constitution. The court held that because there are breed standards in dictionaries, dog breed books, and standards set forth by the American Kennel Club and United Kennel Club that a reasonable person would be able to identify whether their dog qualifies as a pit bull and is thus regulated by the ordinance.
Florida
State of Florida v. Peters
534 So.2d. 760
District Court of Appeal of Florida, 1988
FACTS: The City of North Miami enacted an ordinance regulating the ownership of pit bulls by requiring their owners to carry insurance, post a surety bond, or furnish other evidence of financial responsibility in the amount of $300,000 to cover any bodily injury, death or property damage that may be caused by the dog. The ordinance also requires that owners register their pit bulls with the City and confine the dogs indoors or in a locked pen. The City defines a pit bull by reference to the characteristics of the breed established by the American Kennel Club and the United Kennel Club. Defendants Donna Lynn Peters and Joy Ivy Shupnick were charged with violating the ordinance. They moved to dismiss the charges on the grounds that the ordinance is unconstitutionally vague on its face and is in violation of the equal protection and due process clauses of the Constitution. The county court granted the defendants’ motion finding that the definition of pit bull in the ordinance is “overbroad, vague, and irrational.” The City appealed the decision.
ISSUES: Did the trial court err in granting defendants’ motion to dismiss the charges?
HOLDING: Yes, the trial court erred in granting defendants’ motion to dismiss the charges. The District Court held that with regard to defendants’ equal protection claim, because no fundamental rights were impacted, the proper test to be applied is whether the law has a rational relationship to a legitimate state interest. In this case, the Court found that the City’s choice to regulate pit bulls cannot be said to be either arbitrary or irrational. The Court next evaluated the defendants’ claim that the ordinances’ requirement that pit bull owners provide a guarantee of financial responsibility violates their constitutional rights to due process. The Court found that the right of the government to pass legislation regulating animals has a long-standing history of passing tests of constitutionality. Finally, the Court evaluated defendants’ claim that the law is fatally flawed in that the definition of “pit bull” is unconstitutionally vague. The Court emphasized that the fundamental concern of the vagueness doctrine is that people be placed on notice of what conduct is illegal and held that the ordinance was sufficiently clear to enable pit bull owners to determine whether their dogs fall within the proscription of the ordinance. The Court therefore reversed the county courts decision and remanded the case for further proceedings.
Indiana
Tucker v. Duke
873 N.E2d 664
Court of Appeals of Indiana, 2007
FACTS: Defendant Tucker had been keeping his girlfriend’s pit bull in his back yard and had the dog staked outside for 4 months. The dog got out of the yard and went over to plaintiff Deborah Duke’s yard where she was doing yard work. Duke attempted to reach the dog tags to identify the owner when the dog attacked her, biting her hands and arms. Duke then ran inside to call the police and animal control. When animal control arrived the dog attacked the animal control officer and a police officer shot and killed the dog. Tucker argues in this appeal that he did not know the dog had dangerous tendencies and should not be held liable.
ISSUES: Did the small claims court reasonably infer that the dog’s owner knew or should have known that the dog had dangerous or vicious tendencies due to the dogs breed?
HOLDING: Yes, the small claims court reasonably inferred that the dog’s owner knew or should have known that the dog had dangerous or vicious tendencies. The court concluded that the specific breed of dog already had vicious tendencies, and Tuckers girlfriend previously had to put two shar pei/pit mixes to sleep because of their dangerous tendencies. Additionally the court concluded that it was reasonable to assume the pit bull would have dangerous tendencies because it had been chained up and not socialized for four months straight. In the absence of clearly erroneous conclusions on the part of the small claims court, judgment was affirmed.
Minnesota
Hannan v. City of Minneapolis
623 N.W.2d 281
Court of Appeals of Minnesota, 2001
FACTS: In June 2000, the City of Minneapolis Animal Control Division issued an order for the destruction of plaintiff Wilbur Hannan’s dog. The dog had been involved in several unprovoked bites and had been declared a dangerous dog. Despite numerous warnings to plaintiff to confine and muzzle the dog, plaintiff failed to do so, leading to four unprovoked bites in total. An administrative hearing was held during which plaintiff was allowed to testify and present several letters that friends and neighbors wrote on the dog’s behalf. The hearing officer affirmed the order to destroy the dog. Plaintiff appealed the decision by the hearing officer claiming that the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of his dog were precluded by state statute.
ISSUES: Are the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” precluded by state statute?
HOLDING: No, the actions of the City of Minneapolis in regulating and ultimately ordering the destruction of what they determined to be a “dangerous animal” are not precluded by state statute. Plaintiff claimed that the city ordinance conflicts with state law, citing matters where the city had provided for additional procedures for regulating dangerous dogs. The court found that while some of the city’s procedures were more severe than state law required, as long as the state has not expressly precluded local regulation, there is no conflict when the state regulates a topic and the local government adds additional regulations that provide consequences greater than those already provided. Plaintiff further insisted that the local ordinance was preempted by state law. Local ordinances are only preempted by state law when the legislature has fully and completely covered the subject matter, clearly indicated that the subject matter is solely of state concern, or the subject matter itself is of such a nature that local regulation would have unreasonably adverse effects on the general populace. The court held that none of these grounds for preemption existed. The legislature has never expressly or impliedly stated that they had fully covered the subject matter or that the subject matter is solely of state concern. Further, they found that the regulation and control of dangerous dogs is a wholly legitimate issue for municipal interest because it primarily affects the local populace. The court also found plaintiff’s claim that his due process rights were violated to have no merit. The court therefore affirmed the hearing officer’s decision that the order for destruction was valid and duly authorized.
Nebraska
Plowman v. Pratt
684 N.W. 2d 28
Supreme Court of Nebraska, 2004
FACTS: Plaintiff Plowman was a meter reader in Nebraska. She went around to neighborhoods and read the relevant meters for an Omaha utility company. While on the job Plowman was in Pratt’s neighbor’s yard when she asked Pratt if she could read her meter. Pratt agreed. But when Plowman began to approach the house, Pratt’s 1 ½ yr old pit bull terrier ran towards Plowman and jumped at her face. Plowman put her arm up to avoid the attack, and the dog bit Plowman’s arm. Plowman sued Pratt’s landlord Simen for injuries resulting from the dog attack, alleging that he knew or should have known of the dog’s dangerous propensities and did nothing to stop the dog from living on his property.
ISSUES: Should the standard of care applied to a landlord for liability for injuries caused by a tenant’s dog be actual knowledge of the dog’s dangerous propensities? Or should the court have adopted a standard where in the landlord is liable for injuries caused by an attack by a tenants dog if the land lord “knew or should have known” of a dogs dangerous propensities?
HOLDING: Yes, the standard of care and general rule for landlord liability is that the landlord has to have actual knowledge of the dangerous propensity of the dog in order to be held liable. The court concluded that this rule should not be overturned and the “know or should have known” language is not too low a threshold for a finding of negligence on the part of the landlord. Simen did not know of the dogs dangerous tendencies and therefore he can not be held liable under the land lord liability rule. The court, in affirming the lower courts grant of summary judgment to Simen, judged that the news articles on pit bulls was inadmissible hearsay and were properly ordered.
New York
Carter v. Metro North Associates
255 A.D.2d 251
Supreme Court, Appellate Division, First Department, New York, 1998
FACTS: In August 1995, the plaintiff, a tenant in the building owned by the defendants, was walking along a path leading to an exit gate of the apartment complex. She was attacked by a pit bull owned by another tenant. The tenant sued the landlords claiming that they were liable for her injuries. The IAS court denied summary judgment for the defendants and instead granted summary judgment to the plaintiff on the issue of liability.
ISSUES: Did the IAS court err in denying summary judgment for the defendants and granting summary judgment to the plaintiff?
HOLDING: Yes, the IAS court erred in denying summary judgment for the defendants and granting summary judgment to the plaintiff. In order for a landlord to be held strictly liable for an injury inflicted by an animal, the plaintiff must establish 1) that the animal had vicious propensities and 2) that the landlord knew or should have known of the animal’s propensities. In this case, there was no evidence that the dog had ever attacked any individual, or previously displayed any vicious behavior. The IAS court erred in circumventing the requirement for evidence concerning the particular animal by purporting to take judicial notice of the vicious nature of the breed as a whole. According to New York case law, however, a court may only take judicial notice to matters of ‘common and general knowledge, well established and authoritatively settled, not doubtful or uncertain. The test is whether sufficient notoriety attaches to the fact to make it proper to assume its existence without proof.’ The Supreme Court found that the IAS court erred in taking such judicial notice because pit bulls alleged “vicious propensity” is not a well-established truth. The court found that on the subject of the propensities of pit bull terriers as a breed, there are alternative opinions that preclude judicial notice such as was taken by the IAS court. The Court found that because the plaintiff failed to submit sufficient evidence to support her claim that this individual dog had vicious propensities or that the defendants were or should have been aware of such propensities, the defendants’ motion for summary judgment should have been granted.
Ohio
Toledo v. Tellings
2006 Ohio 975
Court of Appeals of Ohio, 2006
FACTS: Appellant, Tellings, a resident of Toledo Ohio, owned three pit bull type dogs. The dogs were family pets and had no history of aggressive or unlawful behavior. The dogs were discovered by a health inspector checking the house for lead paint, and reported to the County Dog Warden. Tellings was charged with two violations of Toledo Municipal Code §505.14(a), which limits ownership of pit bulls to one per household, and two violations of R.C. 955.22, the failure to provide liability insurance. R.C. 955.22, 955.11(A)(4)(a)(iii) includes pit bulls in the definition of “vicious dogs.” One dog remained in the Tellings home, one was given away, and the third was confiscated by the dog warden and subsequently destroyed. Tellings challenged the constitutionality of the ordinances on numerous grounds. The trial court held the state and local “vicious dog” laws to be constitutional.
ISSUES: Did the trial court err in finding state and local “vicious dog” laws constitutional?
HOLDING: Yes, the trial court erred in finding state and local “vicious dog” laws constitutional on numerous grounds. 1) The Court of Appeals found that the laws are unconstitutional because they violate procedural due process. The laws create an unrebuttable presumption that if the dog warden designates a dog as a pit bull, it is “vicious” regardless of its training, behavior or history. Therefore, the appellant had no opportunity to challenge the finding before being charged with noncompliance with the statutes. 2) The Court of Appeals also found that the laws are unconstitutional because they violate equal protection. Both ordinances relied on an out-dated and now disproved presumption that pit bulls are inherently dangerous. They are therefore unconstitutional since they lack a rational or real and substantial relationship to a legitimate governmental interest. 3) The Court of Appeals further found that the ordinances were unconstitutionally vague and therefore violate the defendant’s right to due process because there is no rational basis to positively identify a pit bull. The Court reversed the lower court’s judgment and vacated Tellings’ convictions.
Ohio
103 Ohio St.3d 144
Supreme Court of Ohio, 2004
FACTS: In October 2001, a county deputy dog warden was summoned to the home of Margaret and Jeffrey Maurer to investigate an incident in which appellee, Janice Cowan’s dogs’ allegedly bit Mrs. Maurer. The dog warden made the determination that Cowan’s dogs were vicious. Cowan was given paperwork explaining her legal responsibilities, including confining her dogs in a particular manner. Cowan failed to confine her dogs in the required manner and was charged with two counts of failing to confine a vicious dog, one count of failing to obtain the required liability insurance for a vicious dog, and one count of failing to restrain a vicious dog. Cowan was convicted of all charges and required to surrender her dogs in exchange for a partially suspended sentence. The court of appeals reversed her convictions finding that the statute under which she was convicted, R.C. 955.22, unconstitutionally deprived Cowan of her due process rights.
ISSUES: Was Cowen unconstitutionally deprived of her due process rights under R.C. 955.22?
HOLDING: Yes, Cowan was unconstitutionally deprived of her due process rights under R.C. 955.22. Under both the Ohio and United States Constitutions, procedural due process requires, at a minimum, an opportunity to be heard when the state seeks to infringe a protected liberty or property right. The Supreme Court of Ohio found that R.C. 955.22 is unconstitutional insofar as it fails to provide dog owners, such as Cowan, with a meaningful opportunity to be heard on the issue of whether a dog is “vicious” or “dangerous.”
Ohio
Vanater v. Village of South Point
717 F.Supp. 1236
United States District Court, S.D. Ohio, Western Division 1989
FACTS: Robert Vanater purchased a pit bull dog, Brandy, in 1986. In 1987, the Village of South Point passed an ordinance prohibiting the owning or harboring of a “Pit Bull Terrier” or “any other type of vicious dog” within the village limits. Brandy is kept within the South Point Village limits and is therefore subject to the village ordinance. There is no evidence of violence on Brandy’s part toward anyone in the family or in the village of South Point. Vanater brought action challenging the constitutionality of the criminal ordinance.
ISSUES: Is the village ordinance making it a crime to own or harbor a pit bull terrier within city limits unconstitutional?
HOLDING: No, the village ordinance is not unconstitutional. Villages have police power to regulate the health, safety, and welfare of the public as long as the regulations are not in conflict with the general laws of the state. The District Court held that the enactment of this ordinance was a valid exercise of police power. In deciding the constitutionality of the ordinance, the Court held that because no fundamental rights were impacted, the proper test to be applied is whether the law has a rational relationship to a legitimate state interest. In this case, there is a rational relationship. The Court concluded that the ordinance was based on “verifiable facts and was a reasonable preventive response and solution to a dangerous and possibly tragic situation.” The Court further found that the ordinance was not unconstitutionally vague. Despite the fact that some definitions contain descriptions which lack “mathematical certainty”, this is not essential to constitutionality. An ordinary person would be able to determine whether his or her dog is a pit bull terrier. Further, the Court held that the ordinance was neither unconstitutionally under-inclusive in violation of the equal protection clause nor overbroad.
South Dakota
City of Pierre v. Blackwell
635 N.W.2d 581
Supreme Court of South Dakota, 2001
FACTS: In June 2000, the Blackwell’s family dog reportedly bit a 14-year old girl in the alley behind the property of the Blackwell’s neighbors. As a result of the incident, the dog was declared a “dangerous animal” under a Pierre city ordinance by the animal control officer reporting to the scene. The dog was impounded and Blackwell was sent notice of the decision by registered mail. Blackwell refused to comply with certain requirements of the ordinance including 1) keeping the dog muzzled, leashed, and in the company of someone 18 years of age or older, 2) having the dog injected with an identification microchip, and 3) carrying a minimum of $100,000 of liability insurance on the dog. The dog was then released to Blackwell pending his criminal trial for noncompliance. When Blackwell still refused to comply with the requirements of the ordinance, the city of Pierre filed a criminal complaint against Blackwell. The only issue at trial was the dog’s dangerousness. The trial court concluded that an independent factual determination was not appropriate and therefore merely reviewed the animal control officer’s determination for its legality. The court held that the determination was neither capricious nor arbitrary and was therefore legally made. Blackwell was convicted. Blackwell appealed the decision.
ISSUES: 1) Were the Pierre City Ordinances unconstitutional on their face as a violation of due process as they allow for the adjudication of a dog as a “dangerous animal” without prior hearing? 2) Did the trial court’s criminal sentence amount to a deprivation of property without a proper criminal trial, thereby violating Blackwell’s constitutional right to due process?
HOLDING: 1) No, the Pierre City Ordinances are not unconstitutional. The Supreme Court held that the means employed by the city did not unreasonably exceed the City’s regulatory authority. Therefore, the ordinances were constitutional. 2) Yes, the trial court’s criminal sentence did amount to a deprivation of property without a proper criminal trial and therefore violated Blackwell’s constitutional right to procedural due process. The Supreme Court found that due process guarantees that notice and the right to be heard are granted in a meaningful time and in a meaningful manner. A dog is property, ao in order to deprive Blackwell of his dog, absent exigent circumstances, the City was required to provide Blackwell with notice, an opportunity to be heard and a proper criminal adjudication by a judicial officer. The Court found that the requirement of a hearing by a disinterested judicial official was not satisfied. For a criminal conviction, dangerousness must be established by the City beyond a reasonable doubt. In this case, the City refused to meet their burden.
Texas
City of Richardson v. Responsible Dog Owners of Texas
794 S.W.2d 17
Supreme Court of Texas, 1990
FACTS: The city of Richardson, Texas enacted an ordinance banning the keeping of pit bulls, unless the owner complied with a set of stringent standards and requirements. The Responsible Dog Owners of Texas sued alleging that sate law preempted the City’s power to adopt an ordinance regulating the keeping of dogs. The trial court granted summary judgment in favor of the city. The court of appeals reversed the trial court’s decision, however, holding that the city ordinance was preempted by state law. The City of Richardson appealed that decision to the Supreme Court of Texas.
ISSUES: Is the City of Richardson’s animal control ordinance valid?
HOLDING: Yes, the city’s animal control ordinance is valid. When there is no conflict between a state law and a city ordinance, the ordinance is not void. In this case, the Supreme Court found that there was no conflict between state law and the local ordinance and accordingly held that state law does not preempt the City of Richardson’s power to adopt this animal control ordinance.