IN THE SUPREME COURT OF OHIO

IN THE SUPREME COURT OF OHIO

* On Appeal from the

City of Toledo, * Lucas County Court of Appeals,

* Sixth Appellate District

Appellant, *

· Supreme Court Case No. 2006-

· 0690

v. * Court of Appeals

* Case No. L-04-1224

Paul Tellings, *

Defendant-Appellee, *

APPELLEES MOTION FOR RECONSIDERATION

Sol Zyndorf (0002398)

320 North Michigan

Toledo Ohio 43604

419 243 1144

419 245 1090 fax

John T Madigan, Acting Director of Law Columbus Ohio, 43215

Adam Loukx, Senior Attorney (Counsel of Record)

(0037074)

City of Toledo Law Department

One Government Center, Suite 1710

(419) 245-1020

Fax No.: (419 245-1090)

APPELLEES MOTION FOR RECONSIDERATION

Appellee respectfully ask the court to reconsider its August 1^st 2007 decision that 955:11

and 955:22 of the Ohio Revised Code is constitutional. A memorandum in support

follows and is incorporated herein.

MEMORANDUM IN SUPPORT

The Appellee seeks reconsideration in the interests of using credible and accurate data to

ensure the publics protection against vicious dogs. The Appellee also asks this court to

reconsider this case on the facts that after the trial was over Lucas County Assistant

Prosecutor Dan Pilrose took Exhibit K from the record and never returned it. Exhibit K

was a book called Fatal Dog Attacks The Stories Behind the Statistics. The fatal dog

attacks book listed every fatal dog attack that had occurred in Ohio since 1965 and is vital

to this case because it proves that Pit Bull Terriers are not the dog responsible for killing

more Ohioans than any other breed. The Toledo Municipal Court reporter who reported

the trial made a statement to verify the record on the taking of Exhibit K and it is filed

with the Ohio Supreme Court.

Appellee asks this court to reconsider the fact that Justice O’Connor was the head of the

Ohio Dog Fighting Task Force and knows what will work to assist in combating illegal

dogfighting and protect the public from vicious dogs. Justice O’Connor found from

reading the statistics and evidence offered at trial that it’s the owners not the breed of dog

and that breed specific laws will not protect the public. It should be in the interests of this

court to do everything possible to ensure legislation serves a legitimate governmental

purpose and not allow political pressure and other agendas to lead to decisions that will

not ensure the publics welfare.

Ohio’s Revised Code 955:11 and 955:22 were originally passed to assist in combating

illegal dogfighting.

The head of Ohio’s Dog fighting Task Force Justice O’Connor does not approve of

955:11 declaring the Pit Bull vicious and this should send a serious message to the court

that Ohio’s breed specific legislation is not combating dogfighting and doing nothing to

protect the public.

Appellee asks this court to reconsider the fact that no proof was submitted by the Lucas

County Dog Warden to support his statements that (1) when Pit bulls attack they are

more likely to inflict severe damage to their victim then other breeds; (2) Pit Bulls have

killed more Ohians than any other breed of dog;(3) Toledo Police Officers fire their

weapons in the line of duty at pit bull more often than they fire at people and all other

breeds of dogs combined.(4) pit bull are encountered more frequently in drug raids than

any other breed of dog. The Lucas County Dog Warden failed to bring forward any

evidence to support his statements and he could of easily accessed the data if it existed.

Appellee asks this court to reconsider that there was no credible evidence presented in the

trial court to prove that pit bulls or any breed of dog pose a serious danger to the safety of

citizens. Breed specific laws plain and simple do nothing to combat illegal dogfighting

and they do not protect the public from dog attacks.

1. THE COURTS AUGUST 1, 2007 DECISION MERIT RECONSIDERATION

The Lucas County Dog Warden Tom Skeldon admitted at trial the Chow in Toledo is responsible

for the most sutures. Refer to (Tom Skeldon Trial Transcript pg 100)

Data in this case was presented to show many other breeds in Ohio were responsible for fatal

attacks before and after ORC 955:11 – 955:22 was amended in 1987.

The numbers of other breeds greatly outweighed American Pit Bull Terriers (refer to Apellees

exhibit C Fatal Dog Attacks ACF) The data showed that in Ohio between 1975 and 2001, 1 Great

Dane, 2 German Shepherds, 1 Malamute, 2 Dobermans, 2 Chows, 3 Mixed breeds , 3 Pit Bulls, 2

Rottweilers, I Husky and I Wolfdog. Exhibit K would also verify the fatal dog attacks that have

occurred on Ohio.

.Tom Skeldon T 105) The Dog warden also gave testimony that the Pit Bulls housed in

his shelter had to be kept in special confinement because of aggression. Four issues of

serious concern (1) The majority of these dogs were seized because of violations of the

breed specific laws and in society were not aggressive. (2) No other shelter Appellee

knows of in the United States has to keep Pit Bulls in special confinement. (3)

Testimony by Toledo Humane Society Officer, Jed Mignano, demonstrated that

American Pit Bull Terriers housed at the Humane Society (1) never act vicious; and (2)

are not housed in a separate area. (Jed Mignano T – all pages ) (4) Appellant’s own

expert Dr Borchelt testified about Pit Bulls being in shelters and being adopted out. (Dr

Borchelt T –84 ).

Tom Skeldon testified (refer to Tom Skeldon transcript pg 105-106 lines 15-25/1-3 ) He

does not know what the Pit Bulls in Lucas County are bred for and if the dog had Pit Bull

in it but did not look like a Pit Bull he would never be in front of the judge, but if it looks

like a Pit Bull we will bring it forward for a case. The Lucas County Dog Warden goes

on to admit that many young canines could resemble a Pit Bull but when they grow up

they turn out to be something else. Appellee’s admit they don’t care about the breed and

are seizing all breeds that look like American Pit Bulls Terriers.

This proves beyond a reasonable doubt the Ohio Revised Code 955:11/22 and Toledo

Municipal Code 505.14 are unconstitutionally void for vagueness, it proves the laws

encourage arbitrary and erratic arrests and convictions, it makes criminal activities that

by modern standards are normally innocent, and it places almost unfettered discretion in

the hands of the police. 49 states allow due process for dogs who bite or act aggressive

and cause severe injury without having enacted breed specific legislation.

Appellee asks this court to consider in the majority of the country in urban areas they do

not have breed specific legislation and there is not a problem with American Pit Bull

Terriers living in urban areas. In Aurora Colorado where they recently passed a breed

specific law it was revealed after a study was completed using Aurora’s dog bite incident

reports from 2003 –2005 that less than 1.9 percent of the severe injuries inflicted to

citizens were attributed to what was identified as a pit bull. Aurora is an urban area and

they are suffering from dog attacks of which 98.1 percent are from other breeds than the

pit bull yet Aurora passed a breed ban.

This court agreed with the trial court that the pit bull is not inherently vicious and

therefore this court must reconsider its decision that 955:11(A)(4)(a)(iii) is constitutional

law.

The only problems associated with this case is the media hype fueled by the extreme

animal rights agenda that does not use rational thinking in an attempt to combat

dogfighting or protect the public when they use their methods of convincing the judicial

system that breed specific laws work.

Before a dog owner may be deprived of his property, the owner must be given a

meaningful opportunity to be heard.

Appellee is challenging the right to life, liberty, due process and property interest. Nicchia v. People of State of New York, 254 U.S. 228 (1920). While the Nicchia case is referring to the licensing of dogs, the U.S Supreme Court does address due process and makes it very clear that the requirement of dog licenses does not take one mans property and give it to another, nor does it deprive dog owners of liberty without due process of law. The US Supreme Court supports a finding from a New York Appeals Court case Fox v. Mohhawk & H.R. Humane Society (1901) The broad power to regulate and control dogs that the US Supreme Court means is a menacing dog can be destroyed without due process, however the dog has to be dangerous and it does not refer to specific breeds of dogs. The Nicchia case clearly supports a finding that dog owners have a right to liberty and due process. The Toledo Ordinance TMC 505.14 and the Ohio Revised Codes 955:11 – 955.22 take away due process and liberty by declaring a Pit Bull vicious with no evidence to prove the breed is vicious.

CONCLUSION

Appellee asks this court to consider that in the interests of justice it would be believed

that the Ohio Supreme Court would do everything in its power to ensure that the citizens

of Ohio receive adequate protection against vicious dogs and that everything possible is

done to combat illegal dogfighting. This case has the evidence and testimony to prove

declaring a specific breed of dog dangerous or vicious does nothing to protect the public

and does nothing to address illegal dogfighitng. Breed specific laws do not target

irresponsible dog owners, they do not target the criminal who can make any breed of dog

dangerous and most of all breed specific laws do not prevent fatal attacks or injuries

inflicted by dogs.

The majority of the country does not have breed specific laws even though the

animal rights agenda supporting it is trying to pass it on a daily basis. American Pit Bull

Terriers along with all other breeds reside in family homes in urban and rural areas of our

country and except for the media and the few animal rights organizations who support

breed specific legislation no other organizations or individual citizens support such laws.

Breed specific laws cause dogs to be impounded that have no inherent vicious or

dangerous temperament, this leads to criminal citations in which the tax payer and

government suffer from financial burden brought upon by a law which was based on

flawed data. When flawed or manipulated data including media hype is allowed to

influence legislators or the courts it leads to results such of that in Ohio where it was

proven at trial in this case that Ohio’s amended Revised Code 955:11 declaring the Pit

Bull vicious has not reduced dog bites, has not reduced problems associated with illegal

dogfighting and most of all has not prevented fatal dog attacks because Ohio has suffered

fatal dog attacks since 1987. Strong penalties that hold owners of dogs responsible for

their dogs behavior have been proven to reduce dog attack numbers in urban areas, strong

penalties for illegal activity involving canines has been proven to reduce the problems

associated with dogfighting. Laws that hold the owner responsible are rational, not

capricious and are effective in protecting the public. Appellee asks this court to

reconsider this case and find 955:11 (A)(4)(a)(iii) unconstitutional because it serves no

legitimate governmental purpose based on the evidence and testimony presented at trial.

________________________________

Sol Zyndorf