August 26, 2009

"The owner of a dog is being sent to jail for 90 days based on his failure to do something he could not know he was supposed to do."

"'Vicious' dogs must be restrained. ... But Traylor's dog was not 'vicious' until the moment it bit a human, at which point it was too late for Traylor to restrain his dog."

From the dissenting opinion by Justice Paul Pfeifer in the Ohio Supreme Court.

67 comments:

rhhardin said...

It's in support of the symbolic order.

Dog bites are an evil and somebody must pay, unless the dog is protecting children at the time.

Meade said...

In my opinion, if all Ohio dog owners simply emulated rhhardin, Ohio would be a better state.

Beldar said...

Cf. City of Richardson v. Responsible Dog Owners of Texas, 794 S.W.2d 17 (Tex. 1990)(upholding municipality's power to regulate animals that "may present a threat to the safety and welfare of the City's citizens; its enforcement does not depend on the dog having already bitten someone," against argument that such was preempted by statewide "'first bite' [section of state Penal Code] which ma[de] it an offense only if a person keeps a dog that has actually engaged in vicious conduct and fails to restrain the dog or obtain the required insurance coverage within sixty days of the dog's vicious conduct").

jimbino said...

Owning an animal is violating the rights of the animal and of one's human neighbors, if the animal is let out. Having a cat or dog inside the house is child abuse if a child is present.

Besides the many diseases that acquired by dogs but not passed onto humans, there are these deadly and serious diseases that dogs DO pass on to humans:

* Anthrax
* Bergeyella (Weeksella) zoohelcum
* Campylobacteriosis
* Capnocytophaga canimorsus
* CDC group NO-1
* Leptospirosis
* Neisseria canis
* Pasteurella multocida
* Plague
* Rabies
* Salmonellosis
* Scabies
* Trichinosis
* Visceral larva migrans
* Blastomycosis
* Brucella canis
* Capnocytophaga cynodegmi
* CDC groups EF-4a and EF-4b
* Cheyletiellosis
* Coenurosis
* Cryptosporidiosis
* Cutaneous larva migrans
* Demodex folliculorum
* Dermatophytosis
* Dipylidium caninum
* Echinococcosis
* Francisella tularensis
* Gastrospirillum hominis
* Granulocytic ehrlichiosis
* Lyme disease
* Neisseria weaveri
* Rocky Mountain Spotted Fever
* Staphylococcus intermedius
* Strongyloides stercoralis
* Yersinia enterocolitica
* Yersinia pseudotuberculosis

EDH said...

While I don't think there is a constitutional requirement to allow "one free bite," there should be some evidence of the dog's propensity for criminal liability to pertain.

And should liability be limited to the dog's owner, allowing non-ownership to be a complete defense?

TRO said...

Sort of like hate crimes laws. It's not the bite, it's the hatred in the dog.

Synova said...

I can't imagine how this law could be written so that it *allows* dogs to run free *unless* they are vicious and still pass muster.

If it said a dog that bites a human must be put down... fine.

If it said that all dogs must be under control at all times... fine.

But if some dogs can roam and only vicious ones have to be confined? It sounds like a *very* stupid law and stupid to try to claim that it's not and stupid to claim that somehow a person is supposed to magically know that their dog isn't one of those that are allowed to legally roam free.

And for freaks sake... a Chihuahua can bite *too*.

Cedarford said...

The owner is responsible, but assigning further levels of actual criminal responsibility to something that he would have to be a Dog Whisperer mind-reader to know, is ridiculous, as the judge properly noted.

And speaking of ridiculous:

jimbino said...
Owning an animal is violating the rights of the animal and of one's human neighbors, if the animal is let out. Having a cat or dog inside the house is child abuse if a child is present.


OK, Jimbino, I am assuming that you are either being sarcastic or just know nothing about animals or child abuse.

former law student said...

his failure to do something he could not know he was supposed to do

That argument would work for a cocker spaniel, or a German Shorthaired Pointer, but not for a Cane Corso.

The ordinance defines a vicious dog as having "a propensity, tendency or disposition to attack, to cause injury to or otherwise endanger the safety of human beings or other domestic animals," or a dog that "attacks a human being or another domestic animal without provocation."

Google provides a good description of the Cane Corso temperament:
Originally used for herding and guarding, the Cane Corso is somewhat aggressive with strangers and other dogs and is only recommended for an experienced handler.

Here, the dog attacked a strange human and another dog, consistent with the temperament of the breed.

Someone who selects a breed known to be aggressive with strangers and other dogs should be aware of these propensities -- most likely those are the traits that attracted that person to the breed. And while I would not condemn a breed based on these traits, the owner must be aware of them, to compensate either by training or physical isolation.

Roger J. said...

while I do not always share the same world view as FLS, I think he hits the nail on the head--I am a big time dog lover. But if I were to purchase a breed I would want to know the dogs basic tendencies as a breed, who bred it, and how they socialized it.

Dogs are wonderful companions, but it is up to us as humans to understand what our responsibilities with respect to the breed. A dogs transgression is almost always its owners fault.If we are to exercise dominion over an animal we bear a moral responsibility to understand our charge.

Roger J. said...

Jimbino--yes, dogs do pass on diseases to humans--but using your logic: have you considered the diseases that humans pass on to humans? we are by far the deadlier of the species

I go with Harry Truman's advice about dogs.

jimbino said...

OK, Cedarford, I misspoke, but I'm not being sarcastic.

Rearing a kid in Amerika is per se child abuse, but having a cat or dog in a house anywhere in the world where a kid is present is more properly called "child endangerment" that justifies removing the child from the home.

A dog or a cat is just as threatening to the welfare of child as is a boa constrictor or lion cub, though perhaps in different ways. Did you read the list of grave zoonoses?

Keeping a slave at home would be better than keeping a deadly animal: it would harm the slave, of course, but your child might be taught what slaves like Aristotle knew and you fail to understand.

Synova said...

And growing up on a FARM... OMG!!!

Call child services NOW!

daubiere said...

"
Besides the many diseases that acquired by dogs but not passed onto humans, there are these deadly and serious diseases that dogs DO pass on to humans:"

do you know what humans pass on to other humans??? we should have you euthanized disease vector!!!

Matt said...

The bottom line is people should keep their dogs on a leash when they are in public. Most owners think their dogs are perfect angels. But the general public cannot be expected to assume that. And so when someone is walking or running by a dog there is reason to believe the dog may jump, chase or bite the passer-by. I've seen it happen often. And the owner is always so surprised. Or they say something like, 'Oh he won't bite he just gets existed and he might knock you down'.

As if that is somehow acceptable.

daubiere said...

oh jimbino is one of those people who spell america with a k. a good sign that you should disregard anything he writes as the product of a nut or an imbecile or probably both....

Roger J. said...

Jimbino: AMERIKA? that so 1960s--you are stuck in the past--grow up man

rhhardin said...

If you lie down with dogs, you will get up with dogs.

Shanna said...

On my walk Saturday morning there was a lady who was walking her dog and he was muzzled. That always makes me a little concerned. How bad is your dog that you think a leash is not enough, and elected to purchase a muzzle? Maybe you shouldn't take him onto a public trail, if that is required.

Synova said...

As a dog returns to its vomit, so does a fool to his folly.

;-)

rhhardin said...

Vicki Hearne's Bandit is a nice history of how dogs went from heros to become the enemy, in the 80s, the decade of the media.

Synova said...

I don't know, Shanna. Some dogs have particular problems and are perfectly wonderful otherwise. I've heard of some pretty weird selective aggressions.

My dog bit the vet, but it was because he was sick... had an infection in his face and was in pain and the (timid!) vet reached for his face. It was a fear bite even though the vet and assistant thought he was being protective of me... he wasn't. He *should* have been muzzled. Lots of vets require them for all dogs. He'd never bit anyone before or since or even acted aggressive. Next time he goes to the vet I'll have a muzzle on him, even if it isn't required.

And I can see a leash law. Certainly.

It's this weird half-way thing where some dogs can run free unless they can't run free, but you don't know until after the fact which it is.

Shanna said...

It's this weird half-way thing where some dogs can run free unless they can't run free, but you don't know until after the fact which it is.

Maybe. I had a dog that kept breaking out (I had to get rid of her). She was sweet as could be but she was 130+ pounds and I always worried someone would see her and get scared and maybe shoot her. But that never happened thankfully.

I could understand a muzzle on a dog at the vet for sure, since they are doing unpleasant things to the dog. But walking on a trail? I guess better safe than sorry, but it just makes me a little concerned about that particular dog when they're walking by.

kentuckyliz said...

Folly is tasty.

EnigmatiCore said...

"To hold otherwise, however, is to permit each dog 'one free bite,' a result that would clearly leave society at risk."

This is probably a true statement. Except, I see nothing in it that is what a judiciary should be finding. It is the right and proper role of a legislature to weigh the risks to society when crafting laws.

""The outcome of this case is morally repugnant," Pfeifer wrote in his dissent."

I also agree with this statement, but again the fact that it is morally repugnant should be irrelevant to the question of if it is constitutional.

Sounds to me like the Ohio Supreme Court is filled with people who want to be super-legislators and not Judges.

The legislature of Ohio should reconsider the law they passed. Do they really want to have a dog owner thrown in jail because their dog bit someone, when there has been no prior offense (by the owner nor the dog)?

If so, they do not belong in office.

But the law seems to me to be constitutional, at least to the small way I understand the Ohio constitution. However, none of the opinions offered here seem to be overly concerned with such distinctions.

traditionalguy said...

The restraint imposed by fines is enough without jail time. That said, the "every dog is entitled to one bite rule" is a rule of Negilgence Law in suits for damages. Does this ordinance make the owner of a viscious first biter neligent per se? A really hard nosed law would put the owner into a fighting cage with a mean pit bull until he got bitten the same way himself. A bite for a bite.

David said...

I could do without the jail time in the law, especially for a first offense, but people have to be responsible for what their animals do.

Children are a lot more likely to abuse dogs than dogs to abuse children.

wv=ovencin: "Hot kitchen sex with the neighbor's dog."

NoName said...

If you are in the area stop by and say hey : I will be doing the audio at The Friends of America Rally On Labor Day, in Logan, West Virginia

Hank Williams, Jr. and John Rich will be performing and Fox News Host Sean Hannity will be speaking at this free event on Monday, September 7th from 10.30 am until 8 pm. Ted Nugent will be the event’s emcee.

http://friendsofamericarally.com/

G Joubert said...

The law puts the responsibility on the owner of certain breeds of dogs to keep the dog on a leash and/or muzzled when doing things like running around in a city park. Makes sense. What's the big fuss?

Oligonicella said...

jimbino --
"Rearing a kid in Amerika is per se child abuse,"

Can we bring charges up against your parents?

MadisonMan said...

Things I've learned as a dog owner.

There is nothing more effective than bringing up your knee, rapidly and with force, when a dog jumps up on you.

People will approach your dog and start petting it without asking you if it's okay. If you own a dog that is skittish or aggressive around strangers, you have to train your dog and deal with this.

Having said that, I agree with everything fls and roger j said between 7:18 and 7:39.

MamaM said...

"Jimbino's"

Another awesome entry for the "Name the Militia Bar in Wyoming" Contest.

Only in Amerika.

jimbino said...

Humans can certainly transmit deadly disease to another human, but they are not allowed a "free bite."

Check out "Es gibt Tage da wünscht ich ich wäre mein Hund" by Reinhard Mey.

Synova said...

"The law puts the responsibility on the owner of certain breeds of dogs to keep the dog on a leash and/or muzzled when doing things like running around in a city park. Makes sense. What's the big fuss?"

Where does it say that?

Granted, I didn't read the article closely but I saw nothing at all that specified different rules for particular *breeds* of dog. Maybe I missed that part.

daubiere said...

" Humans can certainly transmit deadly disease to another human, but they are not allowed a "free bite."

Neither are dogs.

Kristian said...

You know sucks? Dante Stallworth, a Cleveland Brown, killed a person driving drunk. He spent 28 days in jail. A person's dog bites someone, with killing a human, and he gets 90 days in jail. He f'ed up are out priorities?

Chip Ahoy said...

Ninety days in jail? Harsh.

Check out "Es gibt Tage da wünscht ich ich wäre mein Hund" by Reinhard Mey.

OK. I'll do that.

Strum strummy strum Strum strum strummy strum

There are days when I wish I were my dog
Then I'd care of no visitors, no gossip, no affairs
Do not talk to me more fluff to his mouth,
to explain any Strawheads anything
In fact, instead of discussing I lay silently on her lap
and she stroked me inevitably to the belly.
Reserves and to ring the doorbell
would I go, would bark
glad that I need to let in anyone.
And I said I'm sorry, but at that hour
the boss is not there and I'm just the dog.

Strum strum strummy strum. Strum strum strummy strum.

... and on and on and on

Except in German.

Now I ask you, why would you recommend that? I'd recommend instead Dog of Flanders, a touching tale about K-9 loyalty and the triumph of human spirit above insurmountable obstacles, or summat.

jimbino said...

Daubiere,

What you say about a "free bite" appears not to be true, in general:

The one-bite rule underlies civil and criminal actions in modern America. When a person is bitten by a dog, 18 American states (listed in Legal Rights of Dog Bite Victims in the USA) use the one-bite rule to determine legal liability. The other 32 and the District of Columbia have abrogated or modified the one-bite rule by so-called "dog bite statutes." (The list of those states also is in Legal Rights of Dog Bite Victims in the USA.)

Freeman Hunt said...

Don't own a dog you can't best without a weapon.

That won't prevent a dog bite, but I think it's good advice.

WV: cluters: You don't want to be bitten on them.

jimbino said...

Chip Ahoy,

It's pretty funny in German. cf Youtube:

http://www.youtube.com/watch?v=7aJezbXb8FQ

Anyway, you should note that in Germany, dogs enter restaurants with their "master" and it's verboten for them to bark, just as it's verboten for German children to speak in public.

I have discovered one use for a dog. Where it's illegal to send a kid to pick up a six-pack, I send the dog, because it is not illegal for a proprietor to sell alcohol to a dog of any age.

BJM said...

Shanna are you sure it wasn't a head collar, not a muzzle? I use a head collar with my Springer and 99% of people we meet think it's a muzzle.

Jen Bradford said...

I think "bite" needs to be defined here. My dog is lousy with kids, and will nip unless I make sure that isn't a possibility. But there's a big difference between that, and the dog two houses down from me that attacked a woman, would not let go, (essentially flayed her leg) and was finally shot. The woman was hospitalized for weeks. A small child would have been killed. There are people who have no business owning dangerous dogs they are unwilling to train or unable to control.

Joe said...

Yet another example of an over legalized society. Get enough laws and you can throw just about anyone in jail.

Fred4Pres said...

Our cat is vicious. It attacks the kids without provocation. He does not attack me because he knows I will kick him.

My turkeys are sweet to me (I have three bronze turkeys), but my kids say they bully them. But in a sweet way, they just look for food and handouts. They are getting big. They should be better behaved because thanksgiving is coming.

I could see being civilly liable for big dogs that misbehaive, but criminally liable? On a strict liability standard.

Fred4Pres said...

My spelling is poor. Sorry. I only had one glass of wine too.

G Joubert said...

Where does it say that?

Granted, I didn't read the article closely but I saw nothing at all that specified different rules for particular *breeds* of dog. Maybe I missed that part.


It's not in the article, but I thought I read somewhere that there was a list of breeds. But even if there is no list, the onus is on the dog owner to have the dog leashed and muzzled or take the chance of being held criminally responsible and going to jail if something bad happens. I'm not getting what's so unreasonable about that. A vicious dog can do a lot of serious injurious damage very fast. Here's story about an incident that happened last year where I live.

jimbino said...

Joe,

You are confusing crimes against persons with victimless crimes. Smoking dope, having consensual sex in an unapproved position and coveting your neighbor's ass are examples of victimless crimes.

Allowing your dog to trespass on my property or to threaten me with disease or attack is NOT a victimless crime. If there weren't laws in place to protect me from you and your dog, I'd just have to shoot you both.

chuck b. said...

An owner should be responsible for every injury his animal causes. If you're afraid of that responsibility, don't own an animal. If you're afraid your animal might harm someone, think about getting a different animal. No whining.

VW: messisms! And pick up that poop!

Pogo said...

If we're going to criminalize junk like this, I'm okay with it as long as similar jail terms greet the gummint officials behind wrong-door no-knock raids, sweetheart mortgages for Senators, fed appointees who forgot to pay taxes, and other misdeeds.

Shanna said...

Shanna are you sure it wasn't a head collar, not a muzzle?

No, that wasn't it. It covered the whole mouth.

Humans can certainly transmit deadly disease to another human, but they are not allowed a "free bite."

When is the last time a parent got throw in jail because their kid bit someone? IF that is really the rule, I need to report my SIL.

AllenS said...

"I didn't know the dog was vicious."

"I didn't know the gun was loaded."

WV: ashir

My initials with an ir.

dannyboy said...

Every dog I owned always seemed to run away. My Korean girlfriend said I probably just didn't have that special connection to animals.

She was a great cook too.

rhhardin said...

It used to be, in real life when it existed, that dogs ran loose as a matter of course.

Towns were the same size as they are today. Cities were the same size. Just not the same towns and cities.

It all worked out. Dogs wound up very well socialized at an early age.

Socialized means able to make sense of people's activities. They knew the neighborhood, and knew what belonged.

The occasional problem dog got rounded up and offed by the dog pound. A problem dog was rare, and easily handled; it meant one not able to make sense of things and so not able to follow the rules. Rare. Rare.

I offer that bit of history as a data point about social structures that are stable; a fact, as it were.

Today dogs are isolated and so not able to learn what they are easily capable of picking up; and even owners are scared witless about dogs.

Why? It was found that it's profitable to scare people, in the 80s in particular, by HSUS and the usual for-profit collaborator in everything, the big media.

For the story, see Vicki Hearne _Bandit_, that I keep pushing. It's about the media and about charities and the sources of power.

Tangentially about dogs.

Ignore the wretched cover hype, which Hearne would have deplored as well.

Vicki Hearne took no prisoners.

bearbee said...

There were two unleashed and unaccompanied dogs.

Seems there is more to this story.

Owner Traylor had the 2nd dog for breeding. Male dogs get nuts around females in heat and smell them for miles away. Both dogs were loose and unattended. If the other owners dog instinctively attempted to approach the female then it possibly provoked an attack upon itself and his owner by the possessive Traylor male dog.

Both dogs were shot dead by police.

For stupidity alone Traylor should have been locked up.

Pogo said...

Dammit, rhhardin, I finally ordered it.

I had seen that book before and the cover in no way suggests the comments you've made from it. It sounds like a 'Chicken Soup for the Dog's Soul" thingie, but it's clearly not that. A victim of the very stuff she describes?

I eagerly await the no-prisoner-taking.

mrs whatsit said...

Clicking through the article to read the court opinion itself sheds a little light on the particular facts. The dogs, a male and a female, each weighed between 170 and 190 pounds. The defendant owned only the female but, although he didn't initially admit it, he turned out to be responsible for both dogs -- he was using the other one for breeding purposes. This means a) both dogs were unneutered and b) the defendant was a breeder, not just a pet owner. It does not take a lot of common sense to appreciate that it is asking for trouble to allow two gigantic dogs from an aggressive breed, one of which is an unneutered male, to run loose around a neighborhood. However, the overlap between the set of those who own dogs and those without a lick of common sense appears to be considerable --which is why cities end up passing laws like this.

All that said, it doesn't make much sense for a city to require guesswork as to which dogs should be restrained. I wonder if Youngstown also has a leash law, so that everybody has a civil responsibility to keep their dogs leashed, but only those who let dangerous dogs run free face criminal responsibility.

Out in farm country where I live, there's no such thing as leash laws. Once we had a neighbor who let her big, young, exuberant Rottweiler run free. I had to stop walking past her house because I'd always end up with this enormous dog leaping all over me, grabbing at my arms with its big mouth full of sharp teeth in what seemed like friendly puppy play from the dog's point of view but frankly was no fun at all from mine (and I like dogs.) The last time this happened, the dog followed me home and into my yard, leaping and pawing and grabbing all the way. I made it into my house and was looking around for a broom or something to use to chase him back down the driveway, when I happened to look out the window just in time to see him lift his leg against the electric fence! (We have a dairy farm, child abusers that we are.) That dog never, ever, ever came back to my house or anywhere near it.

wv: pasein !! what the dog shouldn't have done . . .

Scott M said...

If you own a dog and that dog is EVER going to be around people other than those the dog is constantly around, you have to ASSUME the dog is going to bit someone. To do otherwise is to invite potential disaster.

My wife and I didn't have children for five years. We did, however, have a dog that we raised from a newborn puppy. Our interaction with other people over those five years was primarily with people that either had older kids or no kids at all. When we moved home after those years and decided to start having kids, we were around family that had small children.

We found, to our ultimate dismay, that the dog had a very intense jealous streak. Any small child that showed any affection to us, especially my wife, would be barked at, growled at, and in two cases, snapped at.

We tried to find her a home, but eventually had to put her down. There was no way I was going to bring a newborn baby into a house with a dog like that.

Point being again...if you take a dog in public, you have to be 100% vigilant.

MadisonMan said...

Dogs that run free one mountain over from where I grew up were routinely shot by farmers. No one pitied the dog owner.

former law student said...

Point Counterpoint:

Out in farm country where I live, there's no such thing as leash laws.

Dogs that run free one mountain over from where I grew up were routinely shot by farmers.

Visiting Sonoma wine country decades ago, I was astonished to see billboards notifying dog owners that unleashed dogs could be shot on sight, for the protection of livestock.

Prism Trading School said...

hmmmmm kinda reminds me of the gun argument. law abiding (non-vicious) citizens (dogs) and roam at will. if the dog bites someone then he is vicious but the owner had no way of knowning.....if the dumb guy with the guy shoots the president welllllll.....see?

Joe said...

Jimbino,

I'm not confusing crimes. We have an over legalized society. Matters which previously would be settles peacefully and with little hassle are now escalated to state matters and involve jail and fines. It's creeping fascism.

bearbee said...

Questionable whether the dog was 'vicious' but at the very least in high anxiety and excitement.

Questionable that Traylor was a licensed dog breeder or a very knowledgeable one.

MadisonMan said...

fls, there were no leash laws, but people knew that if their dog left their property, it might be gone for good. You just trained your dog not to roam.

Synova said...

"hmmmmm kinda reminds me of the gun argument. law abiding (non-vicious) citizens (dogs) and roam at will. if the dog bites someone then he is vicious but the owner had no way of knowning.....if the dumb guy with the guy shoots the president welllllll.....see?"

I'm quite sure that I'm missing what I'm supposed to "see."

Non-vicious parents are allowed to raise children without government supervision but if the dumb parent beats her baby for crying... see?

Non-vicious teenagers are allowed to roam at will until some dumb teenager breaks a window and steals a car for a joy ride... see?

I could go on all day with one example of the presumption of innocence leading to physical risk to the public in our society... but what would be the point? See?

Sofa King said...

Is Jimbino's real name Wade Blasingame? No, not the ball player, the attorney at law.

jimbino said...

I basically agree with you Joe. The worst thing you can do in this country is enjoy S*X, drugs and rock and roll. That enjoyment leads to severe punishment, as our paladins Hefner and Flynt had to learn.

A dog merely crapping in your yard, sniffing your balls or slobbering over your kid gets a pass, because it has nothing to do with S*X, which Amerikans can't stand to think about.

Besides that, a dog gets to run around na*ed and you can take pictures of him without losing all your civil liberties. Indeed, two dogs can have S*X stark na*ed right in public and neither of them goes to jail.

jaed said...

jimbino's remarks in this thread are fully as weird as those of Mr. Circumcision, whatever his name was, the other day.