Companion Animals: Dangerous Dogs/Vicious Dogs
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.
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.”
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, so 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.