Update: On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On May 8, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Joseph Jones, 2018-0601. At issue in the case is whether a dog must be previously designated as a “dangerous dog” under R.C. 955.11 for the dog’s owner to be convicted of a misdemeanor for failure to control a “dangerous dog” under R.C. 955.22(D). Judge Cheryl L. Waite of the Seventh District Court of Appeals will sit for Justice Fischer, who has recused himself from the case.

Case Background

On May 15, 2016, Joseph Jones (“Jones”) took his dog, an American Pit Bull named Prince Bane, for a walk. During the walk, Jones unleashed Prince Bane so that his dog could interact with a stray female dog. This stray, according to Jones, closely resembled Prince Bane but was half his size. Ashley Rushing (“Rushing”) lived in the same apartment building as Jones. Rushing also took her dog for a walk that night. Rushing and her dog, a small Chinese Crested Hairless, were on the top steps to the apartment building when Jones, Prince Bane, and the stray approached. Rushing was attacked by one of the dogs while trying to pick up her dog. Rushing’s hands were bitten, and she was pulled down in the attack. Rushing claimed that Prince Bane attacked her. Jones asserted that the stray attacked Rushing and that Rushing was confused because of the similar appearance of the two dogs. At trial, the trial court found Jones guilty of failing to confine a dangerous dog, a fourth-degree misdemeanor, in violation of R.C. 955.22(D). Jones appealed.

The Appeal

On appeal, the First District, in an opinion  authored by Judge Charles Miller and joined by Judge Dennis Deters, in which Judge Beth Myers concurred in judgment only, reversed the decision of the trial court. According to the First District, Jones was improperly charged and convicted of violating R.C. 955.22(D) because Prince Bane had not previously been designated as a “dangerous dog” under R.C. 955.11, which is a prerequisite to finding such a violation. Any other reading of the statute would violate constitutional due process rights. Jones was discharged from further prosecution. The Supreme Court accepted the case on conflict certification.

Votes to Accept the Case

Yes: Justices DeWine, Kennedy, Fischer, and French

No:  Chief Justice O’Connor, and former Justice O’Donnell

Former Justice DeGenaro did not participate in this case.

Certified Conflict

Must a dog have been previously designated as a “dangerous dog” under Chapter 955 of the Revised Code before its owner may be prosecuted for a violation of R.C. 955.22?

Certified Conflict Case

State v. Crocker, 2013-Ohio-3100 (5th Dist.) (A dog need not have been previously designated as a dangerous dog for its owner to be convicted of failure to restrain or confine a dangerous dog.)

Key Statutes and Precedent

R.C. 955.11 (Dangerous Dog Defined)(A dangerous dog is one that has, without provocation, caused injury, other than killing or serious injury, to any person, killed another dog, or been the subject of a third violation under R.C. 955.22(C).)

R.C. 955.22 (Confining, restraining, debarking dogs; dangerous dog registration)

(B) No owner of any female dog shall permit the dog to go beyond owner’s premises while it is in heat without a leash;

(C) Except while hunting, no owner of any dog shall fail to keep a dog physically confined, under appropriate supervision, or keep the dog under reasonable control of some person.

(D) Except when hunting, no owner of a dangerous dog shall fail to secure the dog in some enclosure, on a chain-link leash not more than six feet long, or keep the dog adequately restrained to prevent injury to a person.)

R.C. 955.222 (Hearings for dog designation)

(A) The municipal court or county court that has territorial jurisdiction over the residence of the owner of a dog shall conduct any hearing concerning the designation of the dog as a nuisance dog, dangerous dog, or vicious dog.

(B)(2) A person authorized to designate a dog as dangerous shall notify the owner of the designation and the owner shall have an opportunity to appeal that designation by hearing.

Matthews v. Eldridge, 414 U.S. 319 (1976) (The court must examine whether a property or liberty interested in infringed by state action; if so, the court must weigh the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional procedural safeguards. Then this must be weighed against the burdens additional protections would impose on the government.)

State v. Cowan, 2004-Ohio-4777 (R.C. 955.22’s restrictions apply only after a dog has been classified as vicious or dangerous. Once a classification has been made the owner must have the right to challenge the determination in accordance with due process.)

State’s Argument

The Fifth District was mostly correct when it decided State v. Crocker. A dog’s status as dangerous can be proven by its prior actions rather than at a prior hearing. This understanding is supported by the plain language of R.C. 955, this court’s past decisions on other dogs, and public policy concerns.

Nothing in R.C. 955.11 or 955.22 explicitly requires a prior formal designation of a dog as “dangerous” in order to convict an owner under R.C. 955.22. R.C. 955.11 simply states the definition of a dangerous dog. R.C. 955.11 was substantially amended in 2011. This same legislation created R.C. 955.222 which discusses jurisdictional hearings; yet, R.C. 955.11 makes no reference to R.C. 955.222 or the necessity of a prior formal designation. The State agrees the prior injury to a person, the prior killing of another dog, or the prior third or subsequent violation of R.C. 955.22(C) must have occurred prior to the incident for which a dog owner is prosecuted. Pursuant to this understanding, the State proffered evidence at trial that Prince Bane had previously bitten people. Yet, the First District’s finding that a prior formal designation is required by R.C. 955.222 is unsupported by the statute.

Instead, R.C. 955.22 explicitly adopts the definition of “dangerous dog” from R.C. 955.11(A)(1)(a). It further addresses the requirements for all dogs and the requirements for “dangerous dogs.” Section (C) requires that all dog owners, irrespective of a dog’s status as “dangerous,” keep reasonable control over a dog. Section (D) imposes an increased burden to properly leash a dog once it is designated as dangerous. Both sections require Jones to control Prince Bane; the only difference is whether Prince Bane met the definition of a “dangerous dog” which elevates the offense of failure to control from a minor misdemeanor to a fourth-degree misdemeanor. Further, local restrictions require all dogs be leashed in public regardless of whether they have previously bitten someone.

Notwithstanding the interplay of these statutory provisions, the First District’s opinion is still erroneous based on its understanding of R.C. 955.22(D), which actually states that a municipal court shall have jurisdiction to conduct any hearing over the designation of a dog. In this case, the municipal court trial constitutes a hearing and the dog was proven dangerous beyond a reasonable doubt.

Neither case law nor due process requires a dog to be previously designated as “dangerous” before the owner may be prosecuted under R.C. 955.22. Due process does not require notice to an owner of a legal responsibility he or she already had. Due process is flexible and adjusts to the weight of the interests involved. In this case, the interest at stake is minimal and unlikely to be protected by further safeguards because the law already requires that a dog be kept under control at all times. Requiring more places an unnecessary burden on the state.

Finally, common sense and public policy concerns obviate the need for a dog to be previously designated as a “dangerous dog” before its owner may be prosecuted for a violation of R.C. 955.22. The First District’s reading essentially creates a “free bite” rule before the State can pursue restitution for injuries caused by “dangerous dogs” and creates dangerous slippery slope implications for other Ohio statutes. A dog owner does not, and should not, need notice to ensure his or her dog doesn’t injure other people. In this case, Jones acknowledged that Prince Bane had been dangerous in the past, and that he used his dog for protection. And when Prince Bane got startled and was off his leash, the dog injured the victim in this case. This is the conduct that R.C. 955.22(C) and (D) were designed to protect against. In this narrow context, common-sense and public policy obviate the need for a prior hearing or formal designation pursuant to R.C. 955.222.

The State requests the decision of the First District be reversed, the approach taken by the Fifth District be adopted, and the certified question be answered in the negative.

Jones’ Argument

Failure to confine a dog under R.C. 955.22 has been held to be a strict liability offense and is punishable as a fourth-degree misdemeanor.  A dog that injures or kills a person is, by definition, a dangerous dog. However, dogs may also be deemed dangerous by other means; in such cases, a dog owner must be notified of the dog’s designation as dangerous under R.C. 955.222 and given an opportunity to challenge the designation.

Only a preexisting designation of a dog as dangerous can support a conviction for failure to confine a dangerous dog under R.C. 955.22(D). An owner who fails to follow certain requirements has committed the offense of failure to confine a dangerous dog. Yet, according to R.C. 955.22(B) and (C) there is no obligation to follow these requirements without a prior designation of a dog as dangerous. Therefore, Jones could not have failed to confine a dangerous dog because his dog had not been designated as dangerous until the trial. Only after the trial designation of Prince Bane as dangerous did Jones have a duty to confine Prince Bane. As such, Jones was not under the obligation to confine Prince Bane at the time Prince Bane bit Rushing’s hand and could not have violated those obligations.

Here, if the State’s argument is accepted it leads to the untenable result where a duty which did not exist at the time of an injury could be violated because a designation was made after the injury occurred. The evidence in this case simply was insufficient to support the conviction, and the decision of the First District should be affirmed.

State’s Proposed Proposition of Law

Under these circumstances, there is no requirement for a dog to have been previously designated as a ‘dangerous dog’ under Chapter 955 of the Ohio Revised Code before its owner can be prosecuted for a violation of R.C. 955.22

Jones’ Proposed Counter Proposition of Law

A dog must have been previously designated as a “dangerous dog” under chapter 955 of the Ohio Revised Code before its owner may be prosecuted for a violation of R.C. 955.22.

Student Contributor: Paul Taske