Update: On December 17, 2019, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“When was the owner on notice that he had a dangerous dog on his hands?”
Chief Justice O’Connor, to the assistant prosecutor
“So basically you are an advocate of every dog gets one bite?”
Chief Justice O’Connor, to the assistant public defender
On May 8, 2019, the Supreme Court of Ohio heard 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 sat for Justice Fischer, who has recused himself from the case. Justice Donnelly was absent from oral argument, but the Chief announced that he would participate in the decision.
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.
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.)
Read the oral argument preview of the case here.
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)
(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.)
(E) Owner of a vicious dog must obtain liability insurance and a dog registration certificate and affix a tag with dangerous dog designation onto the dog’s collar.
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 is 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 (Striking down prior version of R.C. 955.22 on due process grounds, for failure to give dog owner meaningful opportunity to be heard on the dog’s classification and for labeling dogs dangerous because of their breed only.)
At Oral Argument
Arguing Counsel
Christopher Liu, Senior Assistant Prosecutor, City of Cincinnati, for Appellant State of Ohio
David Hoffmann, Assistant Public Defender, Office of Hamilton County Public Defender, for Appellee Joseph Jones
State’s Argument
The answer to the certified question should be no, and the First District should be reversed. First District precedent now requires the dangerous dog designation as an element or a mandatory prerequisite to all prosecutions under R.C. 955.22. It is the state’s position that a prior designation of dangerous dog under R.C. 955.11 is not an absolute requirement to go forward under R.C. 955. 22, or an element of this offense.
The First District’s decision doesn’t follow the plain language of R.C. 955.22 and R.C. 955.11. It is axiomatic that if words aren’t defined by law they must be given their plain and ordinary meaning, and that words cannot be added to a statute. There is a difference between the past conduct which is described in R.C. 955.11 and a prior designation, which is what the First District is ultimately requiring. That’s where the appeals court went too far, because the plain language of those words talks about a situation in which a dog has caused serious injury. But just because the language is in the past tense doesn’t also require it to be a prior designation, which is an extra step.
What we are talking about in the context of the certified question is all prosecutions under R.C. 955.22. The reality is an owner is required to keep his or her dog confined whether or not it is dangerous. There’s a difference between a situation in which there is a simple failure to confine, and a situation involving more specific requirements that might be imposed when there is a dangerous dog designation.
Mr. Jones was notified that he had a dangerous dog by the filing of a ticket, which told him that he was being charged with failing to confine a dangerous dog. And in this case, the state introduced evidence of the dog’s prior conduct–specifically that the dog had previously bitten people and its owner had trained the dog to be more dangerous, to bite people and not let go. While the question of whether there was sufficient evidence to convict is certainly of concern to the state, it is the precedent here that most matters. While the state would like the Court to affirm the conviction, ultimately it’s the precedent of whether lack of a prior dangerous dog designation is an absolute prohibition to prosecution under R.C. 955.22 that the state seeks to have clarified or corrected.
In this case, due process is satisfied when we talk about failure to confine, because the state has to present evidence to the Municipal Court and prove beyond a reasonable doubt that the dog is/was dangerous. In that way there is due process, and it has been satisfied by virtue of a Municipal Court trial. In the balancing required in Matthews v. Eldridge, the private interest is low because the conduct prohibited is illegal regardless of whether the dog is dangerous , the risk of erroneous deprivation is slight, because of the requisite higher proof beyond a reasonable doubt in the context of a municipal court trial, and the probable value of additional safeguards is minimal, because a dog owner is still in front of a municipal court on the proposition that this is what the owner’s dog has done in this situation.
This Court’s decision in State v. Cowan is distinguishable because the violation there was predicated on a unilateral decision by a dog warden. Also the conduct in that case, the act of tethering a dog to a tree, probably would have been legal but for the designation of the dog as dangerous. Common sense dictates that you don’t need a hearing to tell you that your dog is dangerous, when you trained the dog to bite people and not let go. When you yourself have made the dog more dangerous, there is some duty to figure out what your obligations are to keep people safe.
The state has a legitimate interest in trying to regulate dogs and protect its citizens from dog attacks. Responsible dog ownership requires owners to confine their dogs. No one knows his or her dog better than the dog’s owner.
Jones’ Argument
A prosecution for failure to control a dangerous dog under R.C. 955.22 requires a prior formal designation of the dog as a dangerous dog for two reasons. First, bringing a prosecution under that section without a prior designation would allow the state to avoid the notice and hearing procedure provided in R.C. 955.222 and to move straight to a criminal prosecution. This Court struck down a previous version of 955.22 as unconstitutional, and allowing such a prosecution without a prior designation of the dog as a dangerous dog would suffer from the same constitutional infirmities. Second, if this Court were to take the position that the dangerousness issue could be determined at the same prosecution as the failure to control, there wouldn’t be the necessary act. There must be an occurrence. The failure to confine a dangerous dog consists of the failure to abide by confinement requirements. Those confinement requirements only apply to a dog that has already been designated as a dangerous dog. The events described in the definition of dangerous dog in R.C. 955.11 are in the past tense. In addition, the issue of provocation must be considered. The statutory definition of “dangerous dog” is one that has, without provocation, caused injury.
For there to be a violation of failure to control a dangerous dog, there must be a designation. There must be someone who tells the owner that’s a dangerous dog, and it has to be reviewed by a judge. Personal knowledge is not sufficient. This Court should find that the First District correctly held that the prior formal designation is necessary for failure to confine a dangerous dog.
What Was On Their Minds
Prior Designation or Not?
Prior to the charge arising and prior to the owner finding himself before a court, there has been no designation, noted Chief Justice O’Connor. But if that designation can be established at trial, if the owner is challenging that, and is also challenging the activity that took place, might that be premature because of the fact there’s no designation according to the reading of the statute?
Failure to Confine
At the hearing on this charge, is the only thing the owner can challenge any element of the statute that the owner is alleged to have violated, asked Chief Justice O’Connor?
Sufficiency of the Evidence in This Case
What was the evidence of dangerousness, asked Justice DeWine? How was that evidence admitted? Was there really sufficient evidence to convict here? Wouldn’t the owner have the opportunity at the prosecution to challenge the dangerousness determination? If we remand this case, then they could argue the evidence does not establish this was a dangerous dog, he noted.
Is the evidentiary question before us, asked Justice French? The question of whether there was evidence in the record to show that there was prior biting, a prior injury? Is there any relevance to it at this point?
Due Process Concerns
What about due process concerns because a dog may have caused harm to someone in the past, maybe rightfully so by protecting its owner, but when there’s a designation and the court has found that dog has caused harm unjustifiably, asked Justice Stewart?
Could someone who has a dangerous dog, but has not gone through the statutory process to be declared a dangerous dog, can the owner of that dog be prosecuted for failure to obtain liability insurance, asked Justice DeWine?
What effect if any does the fact that in the 5th district case the dog owner got notice from the dog warden that the dog was dangerous, and he did not appeal, asked Judge Waite? What impact does that fact have on that 5th district case, and then on this one?
What Makes a Dog a Dangerous Dog?
Is the activity that gave rise to the failure to confine charge sufficient to define the dog pursuant to R.C. 955.11 or doesn’t it matter, asked Chief Justice O’Connor? Can the standard be subjective? An individual has to decide for themselves whether his or her dog is dangerous? Is it the label that matters or is it the activity of the dog that matters? Doesn’t an owner know if he or she has a dangerous dog? If he or she has trained it to be a fighter? If he or she has in some way enhanced its ability to attack and respond? If your dog without provocation has killed another dog, even if it were your own, because you have two, and one kills the other, and that’s known, isn’t that animal for all intents and purposes a dangerous dog? How is the dangerousness issue brought to the attention of the animal warden? And if it isn’t, does that mean the dog isn’t dangerous? In that situation, where your dog kills another dog, does that dog fit the definition of R.C. 955.11? Or do you have to wait for a second incident where the dog is off leash or in violation of RC 955.22? Personal knowledge is not sufficient?
How is this determination subjective, asked Justice DeWine, when defense counsel suggested it was. The statute has three pretty clear elements to make something a dangerous dog. What’s subjective about that? Isn’t it a matter of common sense that if someone knows their dog has killed another dog or caused injury to another person without being provoked, they would take those extra precautions required by the statute?Earlier, he asked if the Court were to say a dangerous dog just means a dog that has done the things the statute says makes a dog dangerous, then that definition would apply throughout, so wouldn’t that require the owner to get liability insurance and comply with the other parts of the statute unless there was some constitutional problem?
How it Looks From the Bleachers
To Professor Emerita Bettman
I think the state may get its win with a negative answer to the certified question, but with a finding either that the evidence wasn’t sufficient to convict in this case, or no finding on that issue. Mr. Liu as much as conceded he would settle for that, because rather than a win on the underlying misdemeanor charge, the state seeks the precedent that a prior designation of dangerousness is not required for a prosecution for a violation of R.C. 955.22. Dangerousness can be challenged at that hearing, which should allay due process concerns.
Mr. Liu and Mr. Hoffmann could not have been more stylistically different. Mr. Liu was voluble, and seemed to enjoy the fray, while Mr. Hoffmann was decidedly taciturn, and seemed anxious for the whole thing to be over. Both got a lot of questions, and I think each made some valid points.
To Student Contributor Paul Taske
I found this argument surprisingly difficult to call. The Court was very active in questioning both sides. During the state’s argument the Court raised serious concerns about the due process issue presented when the owner is supposed to know he or she harbors a dangerous dog because of the first incident—prior to a formal hearing. And during Jones’ argument the Court was very reluctant to adopt a “free bite” rule. I don’t imagine that either side will be the clear winner here. I think the most likely outcome is that the Court will side with Jones but create a rule that both protects the due process interests while disavowing a “free bite” interpretation.
To Student Contributor Maria Ruwe
I think that the State will win this case. The justices seemed primarily concerned with whether convicting a dog owner without formally designating the dog as “dangerous” would result in a deprivation of due process. The justices were also concerned that the State’s position would require dog owners to use a purely subjective analysis when determining whether their dogs were dangerous. The State answered the due process question by arguing that the balancing tests within Matthew v. Eldridge were satisfied. To dispel the second concern, the State pointed to the clear requirements within the statute that guided the determination about whether a dog was dangerous. I thought that the Court seemed satisfied with these arguments. In contrast, Jones’s counsel seemed incredibly unprepared for the argument, which I think greatly hurt his position. Rather than explain his reasoning for his arguments, he merely restated the conclusions without providing any support for his position.
I see merit in each party’s argument, and a plausible argument could be made for both sides. However, because Jones’s counsel did a deplorable job of making Jones’s argument, I believe that the Court will rule for the State.