Vanater v. Village of South Point

• Decision Date: 29 June 1989
• Docket Number: No. C-1-87-708.,C-1-87-708.
• Citation: 717 F. Supp. 1236
• Parties: Robert R. VANATER, Plaintiff, v. VILLAGE OF SOUTH POINT, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

717 F. Supp. 1236

Robert R. VANATER, Plaintiff, v. VILLAGE OF SOUTH POINT, et al., Defendants.

No. C-1-87-708.

United States District Court, S.D. Ohio, W.D.

June 29, 1989.

COPYRIGHT MATERIAL OMITTED

John Frazier Jackson, Columbus, Ohio, for plaintiff.

Thomas A. Leubbers, Cincinnati, Ohio, David M. McCown, Ironton, Ohio, for defendants.

ORDER

HERMAN J. WEBER, District Judge.

This matter is before the Court pursuant to a two day trial to the Court at which both parties presented witnesses, experts and trial exhibits. Plaintiff's Complaint seeks declaratory judgment and a permanent injunction against the defendants challenging the constitutionality of Ordinance Number 87-6 of the Village of South Point which prohibits the owning or harboring of Pit Bull Terriers or other vicious dogs within the limits of the village. On the basis of the evidence, testimony and arguments presented by both sides, the Court makes the following Findings of Fact and Conclusions of Law which are necessary to resolve the issues concerning the constitutionality of the Ordinance.

FINDINGS OF FACT

Plaintiff, Robert Vanater, purchased a dog for his wife in late 1986. The dog was purchased for her because Mr. Vanater worked certain shifts which required him to be gone from home for long periods of time and late at night.

The Vanaters were curious about a dog called a "pit bull" which plaintiff had seen advertised in the newspaper. Mr. and Mrs. Vanater had limited knowledge and understanding about the characteristics of a Pit Bull and, after seeing the dog, they decided to purchase it.

The dog, Brandy, was brought home to live with the Vanaters and occupied the house with the family and at least one other dog. Brandy is a female dog and has been spayed. Brandy also successfully completed obedience school scoring 191 points out of 200 possible points.

Brandy was four months old when the Vanaters bought the dog and, at the time of trial, Brandy was almost two years old. In that time, Brandy got along very well with the four children in the Vanater home, with the children who visit the Vanaters and with the other dog in the house. There is no evidence that Brandy has ever displayed any displeasure toward any children or any of the Vanater's grandchildren, nor is there any evidence of violence on Brandy's part directed toward anyone in the family or in the Village of South Point.

Plaintiff licensed the dog shortly after he bought her and listed the dog as an American Pit Bull Terrier. Plaintiff did receive papers from Brandy's seller but never registered her with any club.

On June 16, 1987, the Council of the Village of South Point passed Ordinance 87-6 prohibiting the owning or harboring of a "Pit Bull Terrier" or "any other type of vicious dog" within the Village limits. A "Pit Bull Terrier" is defined as:

... any Staffordshire Bull Terrier or American Staffordshire Terrier breed of dog, or any mixed breed of dog which contains, as an element of its breeding the breed of Staffordshire Bull Terrier or American Staffordshire Terrier as to be identifiable as partially of the breed of Staffordshire Bull Terrier or American Staffordshire Terrier by a qualified veterinarian duly licensed by the State of Ohio.

The Ordinance went into effect on June 16, 1987.

The Ordinance is criminal in nature and provides as a penalty a $1,000 fine or imprisonment of not more than 60 days or both. In addition, the cost of shelter, food, and identification of any dog subject to the Ordinance is assessed to the potential defendant.

Brandy is kept within the Village of South Point corporation limits and is within the jurisdiction of the Village and subject to this Ordinance.

The Ordinance was proposed because Mayor William Gaskin had become concerned about the danger posed by Pit Bulls which came to light from media reports and calls from concerned citizens of South Point. This resulted from reports of two attacks by Pit Bulls on citizens in neighboring cities within a 10-mile radius of South Point; one of the attacks occurred in Ironton which is approximately six miles from South Point, and the other in Lawrence County, outside of Ironton and also a few miles from South Point. No Pit Bull attacks were ever reported in the Village of South Point.

Carl Vance, Police Chief of the Village, received a number of complaints concerning Pit Bulls in the six months to one year period prior to the proposal of the Ordinance and also received four or five oral complaints concerning Brandy specifically.

Upon investigation, Mayor Gaskin determined that there were six or seven Pit Bulls within the Village of South Point; these Pit Bulls were only identified by Mayor Gaskin through callers who said they saw "Pit Bulls;" that identification, however, was not specifically connected to the definition given in Ordinance 87-6.

Responding to this concern and information, the Mayor caused Ordinance 87-6 to be prepared and presented it to the City Council. The proposed Ordinance received heavy publicity and was the subject of comment by the public at three council meetings. The issues presented by the Ordinance were debated at three public meetings at which all citizens were given a full and fair opportunity to be heard.

During the council meetings held before the passage of the Ordinance, both proponents and opponents spoke freely of their opinions about Pit Bulls and the Ordinance. No scientific evidence or expert testimony regarding what a Pit Bull is or whether it is inherently more vicious, dangerous or prone to attack than other dogs was offered or addressed in these hearings.

Plaintiff Vanater was among those who spoke against the Ordinance while it was being considered. Chief Vance, whose job it is to enforce Ordinance 87-6 within the village limits, testified that neither he nor any of his staff members had training in identifying dogs and explained that there is no such known training available to educate law enforcement officers. Chief Vance also has no expertise in identifying certain dog breeds or confirming whether they would or would not violate the Ordinance as "Pit Bulls."

The Ordinance was passed by a 4-2 vote as a necessary control to eliminate the risk of attack by Pit Bulls and other vicious dogs which "have become a threat to the health, safety, and welfare of the public in all areas of the Village of South Point." The Ordinance was passed for this purpose as an emergency ordinance necessary for the "immediate" protection of the public.

The village's enforcement policy with respect to Ordinance 87-6 is to verify the identification of dogs suspected to be Pit Bulls by either the owner or a qualified veterinarian.

Pit Bulls vary in their size, shape and color, and both the plaintiff and defense experts testified that they have been wrong in their identification of dogs.

There is no statistically definable qualitative method to distinguish a Pit Bull by its biochemical makeup.

While identification of the breed of a dog may be difficult in some situations, the facts adduced at trial establish that there are certain confirming characteristics to what is described as a Pit Bull.

There is an ample body of literature which can aid in the identification of Pit Bulls and, most often, a Pit Bull is identifiable as such by its conformation. "Pit Bull" does describe an identifiable type of dog.

The conformation alone does not pose the high risk of danger, but it is an indicator of the Pit Bull's ability to perform in an unreasonably dangerous manner.

Pit Bulls also possess the quality of gameness, which is not a totally clear concept, but which can be described as the propensity to catch and maul an attacked victim unrelentingly until death occurs, or as the continuing tenacity and tendency to attack repeatedly for the purpose of killing. It is clear that the unquantifiable, unpredictable agressiveness and gameness of Pit Bulls make them uniquely dangerous.

Pit Bulls have the following distinctive behavioral characteristics: a) grasping strength, b) climbing and hanging ability, c) weight pulling ability, d) a history of frenzy, which is the trait of unusual relentless ferocity or the extreme concentration on fighting and attacking, e) a history of catching, fighting, and killing instinct, f) the ability to be extremely destructive and aggressive, g) highly tolerant of pain, h) great biting strength, i) undying tenacity and courage and they are highly unpredictable.

While these traits, tendencies or abilities are not unique to Pit Bulls exclusively, Pit Bulls will have these instincts and phenotypical characteristics; most siginficantly, such characteristics can be latent and may appear without warning or provocation.

The breeding history of Pit Bulls makes it impossible to rule out a violent propensity for any one dog as gameness and aggressiveness can be hidden for years. Given the Pit Bull's genetical physical strengths and abilities, a Pit Bull always poses the possibility of danger; given the Pit Bull's breeding history as a fighting dog and the latency of its aggressiveness and gameness, the Pit Bull poses a danger distinct from other breeds of dogs which do not so uniformly share those traits.

While Pit Bulls are not the only breed of dog which can be dangerous or vicious, it is reasonable to single out the breed to anticipate and avoid the dangerous aggressiveness which may be undetectable in a Pit Bull.

CONCLUSIONS OF LAW

I. Valid Exercise of Police Power

Local government is accorded a great deal of discretion in this area of legislation. Villages are given the authority to adopt and enforce within their limits local "police" regulations as long as those regulations are not in conflict with the general laws of the state. This police power encompasses the protection of the health, safety, and welfare of the public. See, e.g., Stone v. Mississippi, 101 U.S. 814, 818, 25 L.Ed. 1079 (1880).

This police power granted to villages...