The Ohio Supreme Court ruled that an official designation of a “dangerous dog” is not required before the dog’s owner can be charged with failing to contain and control a dangerous dog.

The Ohio Supreme Court ruled that an official designation of a “dangerous dog” is not required before the dog’s owner can be charged with failing to contain and control a dangerous dog.

As long as the prosecution has reason to believe a dog has a history of being dangerous, an official designation of a “dangerous dog” is not required before the dog’s owner can be charged with failing to contain and control a dangerous dog, the Ohio Supreme Court ruled today.

A divided Supreme Court found that a 2012 state law provides a fair process for a dog warden to have a dog designated as dangerous, but that the designation is not a prerequisite to charging an owner with crimes related to handling a dangerous dog.

Writing for the Court majority, Justice Melody J. Stewart stated that if the prosecution has reason to believe that the dog’s history included either causing a non-serious injury to a person or killing another dog, or the owner repeatedly failed to control the dog, then the owner can be charged with failing to control a dangerous dog.

The decision reversed the First District Court of Appeals’ conclusion that a prior designation is required before charging the owner with violating R.C. 955.22(D), which mandates a dangerous dog be leashed or muzzled when not on the owner’s property. The Supreme Court, however, agreed with the First District that Joseph Jones was wrongfully convicted of violating the statute when his dog bit another resident of a Cincinnati apartment complex.

Chief Justice Maureen O’Connor and Justices R. Patrick DeWine and Michael P. Donnelly joined the opinion as did Seventh District Court of Appeals Judge Cheryl L. Waite sitting for Justice Patrick F. Fischer.

In a concurring opinion, Justice Sharon L. Kennedy wrote she agreed with the majority’s decision to acquit Jones, but she would rule that an official designation is required before an owner could be charged with crimes related to handling a dangerous dog. Justice Judith L. French joined Justice Kennedy’s opinion.

Stray-Dog Encounter Leads to Biting Incident
Jones was walking his dog near his apartment when he unleashed it to allow his dog to protect him from an approaching stray dog. The two dogs then interacted without incident. Jones was walking back to his apartment with the two dogs when Alyssa Rushing exited her building with her dog. The two unleashed dogs approached Rushing and her dog. Jones stated that he releashed his dog and the stray dog attacked Rushing’s dog. Rushing claimed Jones’ dog bit her on the wrist and hands while the stray dog attacked her dog. Jones assisted in separating his dog from Rushing and freeing her dog from the stray dog. Rushing and her dog sustained bite wounds.

Owner Charged with Failure to Control
The Cincinnati city prosecutor charged Jones with failing to confine a dangerous dog, a fourth-degree misdemeanor, which prohibits the owner of a dangerous dog from unleashing the dog while in public.

To prove the dog was dangerous under R.C. 955.22, the prosecutor presented a Facebook post by Jones containing a picture of his dog and several comments underneath. One person commented on the dog’s good temperament, and Jones replied by saying he trained him because he “use to try n smell or bite everybody.”

Jones explained at his trial that his dog was in “protection training,” in which the dog learned how to protect Jones from danger, and that the course was intended to teach the dog to bite on command. He argued his dog did not bite Rushing.

The Hamilton County Municipal Court convicted Jones and sentenced him to 30 days in jail, which were suspended, and placed him on six months’ probation, fined him $100, and charged him court costs.

Jones appealed to the First District, which reversed the trial court decision, finding that the state had to either use the procedures in R.C. 955.222 to designate a dog as dangerous, or that a court had to have previously designated a dog as dangerous, before a dog owner could be charged with crimes related to handling a dangerous dog. The First District recognized its decision was in conflict with a Fifth District Court of Appeals decision. The city appealed the case to the Supreme Court, which agreed to consider the conflict among the appellate courts and Jones’ conviction.

State Establishes Multiple Dog Designations
R.C. Chapter 955, titled “Dogs,” contains a number of laws about the ownership and treatment of dogs. Justice Stewart explained the chapter provides specific legal definitions for “nuisance dogs,” “dangerous dogs,” and “vicious dogs,” and outlines penalties for noncompliance with laws pertaining to those types of dogs.

Jones and the city disputed the rules of R.C. 955.22 and how an “owner, keeper, or harborer” of a dangerous dog must confine it. The statute also requires liability insurance for dangerous dogs. The law had allowed a dog warden to label a dog as dangerous or vicious. In 2004, the Ohio Supreme Court struck down the law as a violation of the dog owner’s due process rights because the owner was not able to challenge the designation. In 2012, the General Assembly enacted R.C. 955.222, which provided a process in which a dog warden could attempt to designate a dog as dangerous and the owner would have a right to a hearing to contest the designation.

The First District determined that unless a warden had declared Jones’ dog as dangerous through the designation process, or there was a prior finding by a court that the dog was dangerous, Jones could not be charged with crimes related to owning a dangerous dog. The First District noted its decision conflicted with the Fifth District’s 2013 State v. Crocker decision, which ruled that the state could prove at trial the dog was dangerous without any prior designation and then convict the owner of failing to control a dangerous dog.

Definition Alerts Owner of Control Requirements
The majority opinion explained the state law defines a dangerous dog as one that has caused a non-serious injury to a person or killed another dog. Dogs that cause a serious injury to a person are designated as “vicious,” the Court explained. A person who has been cited for failing to keep the dog under reasonable control three or more times also can also be considered the owner, keeper, or harborer of a dangerous dog.

Dog owners can ascertain whether their dogs meet the definition of dangerous and, while the state provided an option for a dog warden to declare the dog as dangerous, it is not required that the dog receive the formal designation in order to charge the owner with crimes related to a dangerous dog, the majority opinion concluded.

“Because the dangerous-dog designation turns on the dog’s past behavior, the statute provides fair warning to a dog owner that he or she may be subject to the dangerous dog provisions of R.C. 955.22,” the opinion stated.

City Failed to Provide Evidence for Conviction
While the Supreme Court rejected Jones’ argument that his dog needed to be officially declared dangerous before he could be charged with failing to control it, the Court found the city failed to provide sufficient evidence to prove the dog was dangerous. The opinion noted the city had to present evidence that prior to the incident with Rushing, Jones’s dog injured a person or killed another dog, or that Jones had been cited three times in the past for failure to control a dog. Because the city presented the Facebook posts about Jones’ dog trying to bite people, but no evidence of the dog actually injuring anyone, it did not prove Jones violated the law, the Court concluded.

Concurrence Finds Law Requires Designation
In her concurrence, Justice Kennedy asked if a dangerous-dog determination can be made at the same time the owner is being prosecuted for failing to maintain a dangerous dog, pursuant to R.C. 955.22(D), then why did state lawmakers establish a legal process in R.C. 955.222 for a dog to be designated dangerous? The concurrence maintained that the majority failed to give effect to the plain and unambiguous meaning of all the words chosen by the legislature, and all parts of the statutory scheme found in R.C. Chapter 955.

Applying the common meaning of the word “designate,” the concurring opinion determined the legislature expressed the intent that a dog cannot be a dangerous dog until the legal process in R.C. 955.222 has been completed.

“It is only after a dog is designated a ‘dangerous dog’ that the owner of the dog is put on notice that he or she is subject to the more stringent ownership and harboring requirements of R.C. 955.22(D) and that a violation of those requirements may subject the owner to criminal prosecution,” the opinion stated.

The concurring opinion further maintained that the majority did not consider the impact of its holding on R.C. 955.222. The concurrence explained that during the designation hearing process, dog owners are required to control or confine the dog pursuant to R.C. 955.22(D), until a final determination is made.

“However, in this case, under the majority’s holding, R.C. 955.222(D) is meaningless, as it would be unnecessary to notify an owner of the duty to comply with R.C. 955.22(D) during the R.C. 955.222 process since he should have started complying immediately after the dog engaged in the behavior,” the opinion stated.

Because the Court must give effect to every word and part of the statutory scheme, a prior designation is required before charging an owner with failure to control or confine a dangerous dog, the concurring opinion concluded.

2018-0601. State v. Jones, Slip Opinion No. 2019-Ohio-5159.

View oral argument video of this case.

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