A Ridgewood Ave. couple that has been ordered to remove their pets from the city filed a lawsuit last month in federal court seeking to invalidate the city’s ban on pit bull dogs.
The suit claims a preexisting set of state laws governing vicious dogs supersedes and voids the city’s laws. The suit accuses the city of using arbitrary methods to identify dangerous dogs and of having an unfair appeals process.
Plaintiffs Kevin and Nicole Tarquinio are seeking compensation for the emotional injury and financial losses they claim to have suffered as a result of the city’s actions. Kevin Tarquinio also claims to have experienced “a great deal of undue emotional stress which has resulted in physical injury.”
Their attorney, Kristi Haude, is also representing former Lakewood resident Leonard Shelton in his pit bull ban-related lawsuit against the city.
Sambucca and Ceaser: Two dangerous dogs?
The Tarquinios adopted two dogs in 2009. Sambucca was a one-and-a-half year old Australian Shepherd/boxer mix from the Cuyahoga County Kennel. Ceaser was a one-and-a-half year old boxer mix from a rescue group near Columbus.
On Sunday, November 7, 2010 at around 5:00 p.m., two of the Tarquinio’s children were walking the animals westbound on Detroit Ave. Someone observed them and complained to the police that they had unmuzzled pit bulls. (Listen to a condensed audio clip of police dispatch communication).
A police officer located the pair in front of Tina’s Deli, near St. Edward High School, and advised them of the complaint. The boys stated the dogs were boxer mixes. The officer followed up with the children’s father, and referred the situation to the city’s animal control officer.
Two days later, according to the Tarquinio’s complaint, Animal Control Officer Kurtis Bialosky visited their Ridgewood Ave. home and photographed the dogs. Bialosky then showed the images to fellow animal control officer and Lakewood Animal Shelter supervisor Elaine Hearn who determined both dogs were pit bulls because they displayed the “predominate characteristics” of such animals.
The Tarquinios received a letter from the city shortly thereafter advising them that unless they supplied blood-drawn DNA results provided by a veterinarian demonstrating that their dogs weren’t pit bull dogs, they would be ordered to remove them from the city.
Due to their concern about the subjective way in which the city used dog DNA test results, the Tarquinios declined to have their pets tested. The Ward 4 residents no longer walk their dogs or take them off of their property for fear of impoundment and prosecution
Tarquinio’s claims for relief
The entire text of the Tarquinio’s lawsuit can be read here (.PDF).
Here is an excerpted summary of their claims for relief:
Claim for Relief: Article XVIII, Section 3 Ohio Constitution – Violation of the Home Rule Doctrine as to Ownership of a Pit Bull
61. Ohio Revised Code 955.01, et seq. does not prohibit the ownership of a dangerous dog, vicious dog, or of a pit bull, and if fact, by virtue of its definitions and regulations regarding pit bulls, permits the ownership of a pit bull. Pursuant to O.R.C. §955.01, et seq., it is legal to own a pit bull.
63. O.R.C. §955.22 permits what Lakewood Codified Ordinance 506 forbids, and thus, LCO 506.01 and 506.03 violate Article XVIII, Section 3 of the Ohio Constitution and must be struck down as unconstitutional.
Claim for Relief: Article XVIII, Section 3 Ohio Constitution – Violation of the Home Rule Doctrine as to a Dangerous Dog On the Premises of Its Owner
70. LCO 506.04 conflicts with O.R.C. §955.22 in violation of Article XVIII, Section 3 the Ohio Constitution and must be struck down as unconstitutional.
Claim for Relief: Article XVIII, Section 3, Ohio Constitution – Violation of the Home Rule Doctrine as to Muzzle Requirement
Claim for Relief: Violation of Article XVIII, Section 3, Ohio Constitution – Violation of the Home Rule Doctrine as to Requirement of Chain and Length of Chain
Claim for Relief: Violation of the Home Rule Doctrine as to the Inclusion of “Any Dog Commonly Known as a Pit Bull” within the Definition of “Pit Bull Dog”
Claim for Relief: Violation of Fourteenth Amendment Procedural Due Process for Failure to Mandate a Hearing
99. LCO 506 violates procedural due process by failing to mandate that the owners of dogs deemed by the Lakewood Defendants to be “pit bull dogs” be given a hearing, or at least given notice that they may request a hearing, prior to a removal order, impoundment, and/or the issuance of criminal citations.
Claim for Relief: Violation of Fourteenth Amendment Procedural Due Process for Failure to Provide Timely Notice and a Meaningful Opportunity to be Heard
108. As such, the practice and policy of the Lakewood Defendants in providing dog owners with such short notice of a hearing deprives the dog owner of timely notice and of a meaningful opportunity to be heard in violation of their procedural due process rights.
Claim for Relief: Violation of Procedural Due Process – Burden on Dog Owner to Prove Dog is not a “Pit Bull Dog”
114. Based on the failures set forth above, LCO 506 encourages subjective and arbitrary enforcement which violates the procedural due process rights of Plaintiffs and Other Dog Owners.
Claim for Relief: Violation of Fourteenth Amendment Substantive Due Process – Unconstitutionally Vague on its Face as to Definition of a “Pit Bull Dog”
127. For the reasons set forth in Paragraphs 116-126, LCO 506 is impermissibly vague in all of its applications and unconstitutionally vague on its face in that it fails to define the criminal offense with sufficient definiteness that an ordinary person can understand what conduct is prohibited and fails to guard against arbitrary, subjective, discriminatory, and unconstitutional enforcement.
Claim for relief: Violation of Fourteenth Amendment Substantive Due Process as to Ban on “Pit Bull Dogs” and Severe Regulations on “Pit Bull Dogs”
135. If Plaintiffs’ right to own and keep Plaintiffs’ Dogs is not a fundamental right, LCO 506 still violates substantive due process because there is no rational relationship between the outright ban and other regulations and restrictions on “pit bull dogs” set forth in LCO 506 for the same reasons set forth in Paragraphs 132-134.
136. Thus, LCO 506 violates the substantive due process rights of Plaintiffs and Other Dog Owners.
Claim for Relief: Violation of Fourteenth Amendment Substantive Due Process as to Ban on Mixed Breed Dogs
140. Banning a mixed breed dog, or any dog for that matter, simply because of the way it looks does not serve a compelling or legitimate government interest at all, and is certainly not narrowly tailored to serve a compelling government interest and is not rationally related to serve a legitimate government because: (a) there is no evidence that mixed breed dogs that look like the stated breeds pose a threat to public safety; (b) no evidence of bites to residents by such mixed breed dogs; (c) the vast majority of evidence in the dog breed identification arena concludes that the which breeds are present in a particular mixed breed dog cannot be gleaned with any certainty by simply looking at the physical characteristics of that dog, which is exactly how Defendant Lakewood determines the breed(s) present in mixed breed dogs under LCO 506; and (d) evidence reveals that the vast majority of dogs initially deemed by Defendant Lakewood to be “pit bull dogs” under LCO 506 that were later DNA tested revealed that Defendant Lakewood was incorrect in its initial determination.
141. Thus, LCO 506 violates the substantive due process rights of Plaintiffs and Other Dog Owners.
Claim for Relief: Injunctive Relief – Preliminary and Permanent
152. Granting Plaintiffs’ request for a preliminary injunction will not only benefit Plaintiffs but will benefit all residents of Defendant Lakewood whose dogs have been or will be deemed “pit bull dogs” under LCO 506. Specifically, an injunction will: (a) stop the Lakewood Defendants from enforcing an ordinance which so clearly violates the Home Rule Doctrine; (b) stop the Lakewood Defendants from enforcing the ordinance in an unconstitutional manner by intentionally failing to advise residents that a hearing can be requested on the issue of whether a dog is a “pit bull dog”; (c) stop the Lakewood Defendants from enforcing the ordinance in an unconstitutional manner by failing to provide a hearing and failing to provide timely notice and a meaningful opportunity to be heard; (d) it will stop the Lakewood Defendants from impounding and/or filing criminal charges against residents of Lakewood who own mixed breed dogs that arguably look like “pit bull dogs” but are not; (e) stop the Lakewood Defendants from placing the burden to prove that a dog is not a “pit bull dog” on the dog owner; and (f) stop the Lakewood Defendants from enforcing an ordinance that violates the procedural and substantive due process rights of citizens.
Judge asked to issue a temporary injunction
The Tarquinios have asked the judge for a preliminary and permanent injunction against the city ordering that all enforcement of the pit bull ban be stopped while the lawsuit is pending. They are also seeking compensatory damages, and attorney’s fees.
The city has denied any wrongdoing.