Tellings v Ohio, a Cited Precedential Case— Led the Way Against BSL

We want to give a shout out to those who brought forward the Tellings v Ohio case several years ago, which resulted in a published precedential decision for the dogs. The American Canine Foundation helped Mr. Tellings gain some justice for his dogs.     American Canine Foundation’s canine expert was subsequently — with little publicity or  fanfare– asked to participate as an expert in the Supreme Court case of U.S. v Stevens,  in conjunction with Stevens’ defense team. ======================================================= The law in question WAS drafted by HSUS and found subsequently unconstitutional by the U.S. Supreme Court. The Stevens case is easily found online or click here–>     STEVENE SUPREME  and the lower court’s reversal decision before that, is above the courtroom picture on our blog homepage.

For more verified BAD HSUS data, see hsus_lobbygate_cover-up-1  and send it to all of your friends/family, email list, etc.  After the HSUS was exposed to the IRS, their website SUDDENLY CHANGED OVERNIGHT. Their bragging about the lawsuits and all the time/money spent on making NEW anti-pet laws, lobbying, and etc magically disappeared from the site.  IRS is currently conducting an investigation on HSUS’ financial picture and the scope of the actual lobbying done by HSUS whether volunteer or otherwise. 

 ======================================================= It was well known that most constitutional scholars and professors all felt that the HSUS “crush” law in question would be shot down in its entirety, and indeed it was. The law as written would make legal conduct illegal as applied, and movies such as Bambi would have been held as violating the law, which is absurd. It is also expected that when the Supreme Court comes out with the verdict as to HSUS’ “violent kid video” law promulgated in California and shilled and authored by the HSUS’ friendly AG— it TOO will be struck down as unconstitutional.  We will be more than happy to announce the ruling when it arrives.

As for the ridiculous subsequent “reversal”  in Tellings that was done by the Ohio Supreme Court, it  shows how insane/ political such laws can be. Dog catcher Skeldon’s word was accepted over any other authority, despite his lack of credentials. He was later  going to be fired and quit after a public debacle arose  regarding  his abuse and torture of animals in shelter ……. yet another lower court Ohio judge has found that the Toledo Ordinance violated the US Constitution.  Toledo law allowed one to own a pitbull subject to certain rules, but the State law claimed that all pitbulls were prima facie vicious, regardless of any evidence proving that assertion. Currently there are efforts to change the Ohio state law in that regard but no finalization has been obtained yet.

In finding Toledo law as violating due process, dogs were “seized” by animal control but such dogs were NOT “pitbulls” which lends authority to the underlying issue of proper identification beyond a resonable doubt for conviction under a criminal statute. The difficulty of “proving” beyond a reasonable doubt that a dog is in fact, a “pitbull” (which is a generic term and not an actual breed) or even a pitbull “mix” was  also again tested, this time in Miami Dade county Florida 2010.

Many courts have found (esp. in Colorado) that identifying a pitbull is as easy as “looking at it.” Colorado courts have long held that ID on a pitbull does not require extensive or expert training. Usually authorities will use a dog registry breed guide such as the descriptions used for dog breed standards.   Contrary to that notion,  a Circuit Court (11th Judicial Circuit Miami-Dade Co) determined that the identification by animal control of a dog as a “pitbull” actually violated the dog owner’s right to constitutional due process.

While the animal control officers were using a 47 point checklist, 51% of the checklist would determine that the dog was a “pitbull.”   However, the court found that it was not possible to state that the animal control officer doing the identification was an expert to even ID the dog, where case law (Supreme Court case Daubert v Merrell Dow Pharm, 509 U.S. 579, 594 (1993) held that scientific or technical methods for expert opinion must meet standards of testing, potential error rates, standards of operation and general acceptance in the affected  relevant community.

The Court stated there was no evidence re the process for measuring the data for error rates because there were no statistics kept and there were no objective standards for comparison. The animal control officer admitted they did not gather data, perform quality control or validate existing data and error checking and peer reviews were non existent. When the officer was offered as an expert in “identifying” “pitbulls” he did not come forward with proper or sufficient testimony on cross exam. It was then determined that the hearing officer had abused his discretion by allowing the animal control officer to provide “expert” testimony.

It was stated that the DANGER of allowing observations by laypersons to be classified as EXPERT testimony– results in unfair prejudice and harmful error in the end result. This has always been the case and proving that a “pitbull” is actually a “pitbull”  beyond a reasonable doubt is not necessarily solved by using “DNA” testing– which is pushed by HSUS.

DNA testing is in its infancy and is not generally considered to be reliable for court purposes. Those involved in the genetics of canine DNA testing know full well that such DNA “testing” is considered as something done for fun, often by those who have adopted dogs with unknown heritage.  Simple experiments done at random by owners will indicate the testing is unreliable where a known purebred dog’s results will indicate breeds that the dog is known not to possess or in some cases the testing will show results for known heritage that fails to show up at all.

However it is possible that certain breeds (likely the ones tracked by large dog registries for 100 years) such as dalmation or very obvious breeds– most of which are not mistaken for other breeds— could possibly be ID’d, but it is not likely those  breeds would even be challenged in the first place. [The primary use of DNA for canines is for registration purposes to ensure that offspring is from the parent line, which confirms the registration documents of the animal purchased.]  The ARs that are opposed to the buying/selling/displaying of animals have no clue as to the DNA testing credibility outside of its merchantibility in making money for those selling the kits.

Also in regard to the former Aurora, CO  breed ban case, the city council there has actually recently dropped the breed ban against all of the named breeds they implemented several years ago, but refused to eliminate generic pitbulls. Amazingly in the Aurora  case,  Aurora’s own data showed that only 1.9% of [counted] bites were done by any of the named (banned) breeds– but the Judge did not even look at the evidence and instead claimed the rationale, however slight, was that animal control stated that such dogs broke pallets and fencing while housed in animal Control and that housing such animals took away from getting other dogs adopted.

Those statements were not verified nor were the animal control officers experts,  but using the rational basis level of scrutiny, Judge stated it was enough.  As you can see, even the site  below (see links)  believes such a ruling is hogwash. Yet, the evidence at trial revealed only 1.9% of bites in the city were from the restricted breeds. The city offered no real evidence that the ban is rationally related to a legitimate government interest in protecting citizens or that it is necessary for their protection.

“The city’s witnesses said only that the restricted breeds were “destructive” in the animal shelter: animal control officers spoke of a fence knocked down once at the shelter and an alleged  fight between two restricted breeds on another occasion.  There was a muddled story of how an animal control officer tried to ‘run over’ 2 restricted breeds because they were running and banged into the truck.  In another story a restricted breed scratched a child and then later when animal control came to the home, bit the officer. The officer at the time did not even think the dog was dangerous and blamed the owner.  If this evidence is enough to justify a breed ban, no dog is safe” as seen on the animallawcoalition site online (see links below)

We do not necessarily agree with listed issues on the site below, but do agree on the BSL issues.

http://www.animallawcoalition.com/breed-bans/article/1462              http://www.animallawcoalition.com/breed-bans/article/1074

If Denver does finally relent on their breed ban of bulls which has been in place since 1989, then it is likely Aurora and other like minded cities would follow.

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