State v. Anderson

• Decision Date: 13 February 1991
• Docket Number: No. 89-2113,89-2113
• Citation: 57 Ohio St.3d 168,566 N.E.2d 1224
• Court: Ohio Supreme Court
• Parties: The STATE of Ohio, Appellant, v. ANDERSON, Appellee.

Page 168

57 Ohio St.3d 168

566 N.E.2d 1224

The STATE of Ohio, Appellant, v. ANDERSON, Appellee.

No. 89-2113.

Supreme Court of Ohio.

Submitted Dec. 11, 1990.

Decided Feb. 13, 1991.

Syllabus by the Court

R.C. 955.11(A)(4)(a)(iii), which provides that the ownership of a dog "commonly known as a pit bull dog" is prima facie evidence of the ownership of a vicious dog, is not unconstitutionally void for vagueness since dogs commonly known as pit bulls possess unique and readily identifiable physical and behavioral traits which are capable of recognition both by dog owners of ordinary intelligence and by enforcement personnel.

On October 21, 1987, the appellee, George M. Anderson, was charged with, inter alia, failing to confine a vicious dog pursuant to R.C. 955.22(D) and failing to obtain liability insurance for a vicious dog pursuant to R.C. 955.22(E). On February 17, 1988, the defendant filed a motion to dismiss these charges on the ground that R.C. 955.11, which defines a "vicious dog" and which is incorporated into these provisions by reference, is unconstitutionally vague.

On April 1 and 18, 1988, the trial court heard testimony from various witnesses for both the prosecution and the defense. On July 19, 1988, the trial court issued a written opinion finding R.C. 955.11(A)(4)(a)(iii) to be unconstitutionally void for vagueness. Accordingly, the court issued an order dismissing the charges against the appellee concerning R.C. 955.22(D) and (E).

The appellant, the state of Ohio, filed a notice of appeal in the court of appeals on August 9, 1988. On October 12, 1989, the Tenth District Court of Appeals affirmed the judgment of the trial court and declared R.C. 955.11(A)(4)(a)(iii) to be unconstitutionally void for vagueness. Finding its decision to be in conflict with the decision of the Twelfth District Court of Appeals in State v. Robinson (1989), 44 Ohio App.3d 128, 541 N.E.2d 1092, the court certified the record of the case to this court for review and final determination.

Ronald J. O'Brien, City Atty., James J. Fais, City Prosecutor, and Thomas K. Lindsey, for appellant.

James Kura, County Public Defender, and Allen V. Adair, for appellee.

ALICE ROBIE RESNICK, Justice.

The question presented in this appeal is whether R.C. 955.11(A)(4)(a)(iii) is constitutional under the Due Process Clauses of the state and federal Constitutions. R.C. 955.11(A)(4)(a)(iii) provides in pertinent part:

" 'Vicious dog' means any dog that, without provocation and subject to division (A)(4)(b) of this section, meets any of the following:

" * * *

"(iii) Belongs to a breed that is commonly known as a pit bull dog. The ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog."

The Tenth District Court of Appeals found this statute to be unconstitutionally void for vagueness. On the basis that "there is no dog 'commonly known as a pit bull dog[,]' " the court found that an individual of ordinary intelligence would not be able to conduct his affairs so as to comply with the statute. Moreover, it found that due to the lack of definite standards in the statute, it could not be administered in a fair and impartial fashion. As a result, the appellate court affirmed the judgment of the trial court granting the appellee's motion to dismiss. For the reasons which follow, we reverse the judgment of the court of appeals and hold that R.C. 955.11(A)(4)(a)(iii) is not unconstitutionally void for vagueness.

It is well-established that private property is held subject to the general police power of a state and may be regulated pursuant to that power. Porter v. Oberlin (1965), 1 Ohio St.2d 143, 30 O.O.2d 491, 205 N.E.2d 363. As the court noted in Vanater v. South Point (S.D.Ohio 1989), 717 F.Supp. 1236, 1241, Section 19, Article I of the Ohio Constitution specifically recognizes the subordination of private property to the general welfare. As a result of this subordination, police power regulations are upheld although they may interfere with the enjoyment of liberty or the acquisition, possession and production of private property. As we recognized in Benjamin v. Columbus (1957), 167 Ohio St. 103, 4 O.O.2d 113, 146 N.E.2d 854, paragraph five of the syllabus, any exercise of the police power will be valid "if it bears a real and substantial relation to the public health, safety, morals or general welfare of the public and if it is not unreasonable or arbitrary."

Among the regulations which have been upheld as legitimate exercises of police power are those regulations addressing the ownership and control of dogs. It cannot be doubted that a special relationship exists between humans and dogs. In this country, dogs have enjoyed tremendous popularity as pets. The expression "a dog is a man's best friend" attests to the joy and closeness often experienced between people and dogs. Due to the ease with which dogs can be trained, they have served as seeing eyes for the blind, and as protectors of people and property from unwanted intrusion and physical harm. To many, a pet dog is as important and as loved as the human members of the family.

However, as a result of breeding, training, and abuse, there are dogs that pose a grave threat to human health and safety. In response to this reality, the United States Supreme Court has recognized that the state retains great power to regulate and control the ownership of dogs. In Sentell v. New Orleans & Carrollton RR. Co. (1897), 166 U.S. 698, 17 S.Ct. 693, 41 L.Ed. 1169, the court declared that although dogs are private property to a qualified extent, they are subject to the state police power, and "might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens. * * * " Id. at 704, 17 S.Ct. at 695. While acknowledging that most dogs are harmless, id. at 705, 17 S.Ct. at 696, the court approved the principle that legislatures have broad police power to regulate all dogs so as to protect the public against the nuisance posed by a vicious dog. Id. at 701-702, 17 S.Ct. at 694-95.

In recent years, this power has been used to control a dog which poses a special danger to the public. During the past ten years, there has been a dramatic rise in the number of fatalities and severe maulings caused by pit bull dogs. Unlike dogs who bite or attack merely to protect a person or his property and then retreat once the danger has passed, pit bulls besiege their victims relentlessly, until severe injury or death results. In response, lawmakers in states and cities across the country have enacted legislation regulating pit bull dog ownership. See Note, The New Breed of Municipal Dog Control Laws: Are They Constitutional? (1984), 53 U.Cin.L.Rev. 1067. These laws range from statutes which ban pit bull ownership outright to statutes which permit ownership but require owners to confine their dogs in particular ways and obtain liability insurance coverage. ¹

As with all statutes designed to promote the public health, safety, and welfare, these ordinances enjoy a strong presumption of constitutionality. See Jackman v. Court of Common Pleas (1967), 9 Ohio St.2d 159, 38 O.O.2d 404, 224 N.E.2d 906. The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail. Jackman, supra; Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O.3d 430, 431, 405 N.E.2d 1047, 1049.

Appellee claims that R.C. 955.11(A)(4)(a)(iii) is unconstitutionally void for vagueness. In order to prove such an assertion, the challenging party must show that the statute is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. * * * " Coates v. Cincinnati (1971), 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214. In other words, the challenger must show that upon examining the statute, an individual of ordinary intelligence would not understand what he is required to do under the law. Thus, to escape responsibility under R.C. 955.11(A)(4)(a)(iii), appellee must prove, beyond a reasonable doubt, that the statute was so unclear that he could not reasonably understand that it prohibited the acts in which he engaged. See United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989; see, generally, 25 Ohio Jurisprudence 3d (1981) 106, Criminal Law, Section 8.

Appellee contends that there is so much confusion and disagreement as to what constitutes a pit bull dog that an ordinary dog owner would not know whether he or she is required to comply with the statute. We acknowledge that it is difficult to form a precise definition of a "pit bull dog." As the district court noted in Vanater, supra, "Pit Bulls vary in their size, shape and color, and * * * experts * * * have been wrong in their identification of dogs."

"There is no statistically definable qualitative method to distinguish a Pit Bull by its biochemical makeup." Id. at 1240. Similarly, in State v. Robinson (1989), 44 Ohio App.3d 128, 541 N.E.2d 1092, where the court upheld R.C. 955.11(A)(4)(a)(iii) against a vagueness challenge, the court conceded that the definition of "pit bull" "may indeed be somewhat elusive. * * * " Id. at 132, 541 N.E.2d at 1096.

Nonetheless, pit bull dogs are distinctive enough that the ordinary dog owner knows or can discover with reasonable effort whether he or she owns such a dog. First, there are certain physical characteristics which distinguish pit bulls from other dog breeds. In Hearn v. Overland Park (1989), 244 Kan. 638, 772 P.2d 758, the court approved the lower court's findings that the " ' * * * physical features [of pit bull dogs] include a short, squatty body with developed chest, shoulders, and legs; a large, flat head; muscular neck and a protruding jaw. The...