Friday, September 21, 2007

Tellings v. Toledo: Revisited

Did anybody else see this article?

It's a piece written by Ohio Supreme Court Justice Paul Pfeifer that showed up in the opinion section of Ohio's Marion Star newspaper. After the Ohio Supreme Court ruled that the challenged breed specific laws were constitutional, Paul Tellings, and the amici parties filed a motion to reconsider the case. That motion is still pending before the court.

Not long after that motion was filed, however, Justice Pfeifer published that opinion piece in the paper.

Tsk tsk.

So much for judicial ethics and Ohio's own canon that says, "While a proceeding is pending or impending in any court, a judge shall not make any public comment that might reasonably be expected to affect its outcome or impair its fairness or make any nonpublic comment that might substantially interfere with a fair trial or hearing."

'Course I sent in a letter to the editor. In case it never appears in their newspaper, I copied it below. If anyone else is inspired to send your own comments, please do. Psst to you Ohioans out there -- your judges are elected, and, should he run, Judge Pfeifer comes up for re-election in 2011.


As an attorney and dog lover, I have been following this case with interest. Both the factual findings adopted by the Ohio Supreme Court and the legal analyses made are illogical and contradictory.

Judge Pfeifer confirms, "there is no evidence that pit bulls bite more frequently than other breeds," but then reports, "The trial court cited the substantial evidence supporting its conclusion that pit bulls, compared to other breeds, cause a disproportionate amount of danger to people."

Is no one else scratching their heads at this contradiction?

The "substantial evidence" relied upon was taken solely from the testimony of one witness -- the dog warden who so proudly touts that he has set the record for the most pit bull seizures. Let's look at what that substantial evidence is.

First, pit bulls cause the most severe damage when they bite. But Warden Skeldon testified that, actually, bites by the chow breed caused the most severe damage.

Second, pit bulls have killed more Ohioans than any other breed. According to the testimony, the plain statement that pit bulls have killed more Ohioans than any other breed is incomplete without evidence of the total population of dogs by breed. In other words, if there are 1000 poodles, 50 border collies, and 5 retrievers in a given population, and a statistic that showed 20 poodle-related fatalities, 10 border collie-related fatalities, and 4retriever-related fatalities, it would be illogical to give any great weight to the fact that poodles have killed more people than the other breeds. By having the total number of dog breeds available, the percentage calculation would show that poodle fatalities are 1 in 50; border collie fatalities are 1 in 5; and retriever related fatalities are 4 in 5.

So far, the first two factors are not persuasive, much less "substantial" evidence.

Third and fourth, police officers shoot at more pit bulls than any other breed and pit bulls are frequently shot at because police officers encounter them more during drug raids more than any other breed. I can only assume that these are the "problem circumstances" that pit bulls have the unfortunate luck with which to be associated. The subtle problem with this rationale is that being "associated with problem circumstances" focuses only outside environmental factors that have nothing to do with the inherent nature of a dog breed. Being "associated with problem circumstances" has no relationship to statutory language that sweepingly defines a breed of dog as inherently vicious.

Notably, there was no evidence that police officers shot at pit bulls because they felt threatened or because they were under attack or because the dogs were in any way dangerous or acted improperly. The state of Ohio elected to define an entire "breed" of dog solely because some individual dogs of that breed are in the wrong place at the wrong time.

Let's summarize. Ohio's statute defines "vicious" dog as any dog commonly known as a "pit bull." The courts found that there's no evidence that pit bulls are inherently dangerous or vicious. Because police officers see and shoot at pit bulls more than any other breed, a statute defining the entire BREED as vicious is rationally related to public safety.

How can that statute be related at all, much less, rationally, to the legitimate interest of public safety?

Because Paul Tellings, the plaintiff, violated these laws, he was forced to give away one of his three family pets and had another taken from him and killed. Did that further public safety? How about the fact that since these laws were enacted, dog fighting complaints have doubled in number and dog bites in Mr. Tellings' county reached a record high in recent years? Furthering public safety, eh?

Perhaps public safety would be better served if the government would crack down on the root cause of "problem circumstances" rather than focus its misdirected energies on restricting, and in too many cases, euthanizing, those things "associated" with them.

I am also more than a little disturbed that Judge Pfeifer wrote this public piece that so plainly states his opinion on the constitutionality of the Ohio and Toledo laws while the case is still pending a motion for reconsideration. I can only hope that he upholds his duty as a judicial officer to be impartial and apply the law to the facts when ruling on that motion, and if not, that he remove himself as a decision-maker.


Brett said...

I'm a Badrap supporter and an animal lover. Not a law enforcement officer, but I have friends in SFPD, Oakland PD and CA Dept. of Corrections. All my cop buddies are dog lovers too, but the story is true, lots of pitbulls get shot by cops. My friends try to minimize the drama by pulling the dogs out when they can, but where do you think dogs go when they are taken out of a house where people get arrested ? There are few good options.

Christine said...

Hi Brett. You're right -- dogs that are owned by people who get arrested don't have many good options. Unfortunately, in today's climate where fear is often the basis of judgments about this breed, pit bulls in general don't have many good options. I also don't doubt that a lot of pit bulls are shot at by police officers. However, the fact that police officers shoot at many pit bulls does not and should not lead to a conclusion that pit bulls, therefore, are de facto, vicious animals.