Petition for Writ of Certiorari — Hearn v. City of Overland Park

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| 1 | Supreme Court, US .

89-4 12° FILED

In the Supreme Court of the United States

OCTOBER TERM, 1989

RANDY HEARN, et al.,

Petitioners,

vs.

THE CITY OF OVERLAND PARK, KANSAS,

Respondent. ;

PETITION FOR WRIT OF CERTIORARI TO

THE KANSAS SUPREME COURT

THoMAS M. PFLAUM, Esq.

(Counsel of Record)

ROGER J. SCHINDLER

SrumMon, SCHINDLER AND SANDBERG, P.A.

1492 South Miami Avenue

Miami, Florida 33130

(305) 358-8611

—and—

DANIEL R. JONES, Esq.

DEVRIES & ASSOCIATES

1006 Grand Avenue, Suite 1122

Kansas City, Missouri 64106

(816) 421-5707

Attorneys for Petitioners

E. L. MENDENHALL, INc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

QUESTION PRESENTED

The narrow question presented is whether the City

of Overland Park ordinance restricting the ownership and

possession of “pit bull dogs” is unconstitutionally vague

for lack of a core meaning; the broader question is whether

state and local governments may adopt and enforce penal

laws aimed at certain canine “breeds” without defining

the targeted “breeds” or specifying the standards (or

methods of evaluation) to be used in deciding which

animals are encompassed by the law.

PARTIES BELOW

Petitioners are dog owners and residents of Johnson

County, Kansas, which encompasses the City of Overland

Park; Respondent is the City of Overland Park, Kansas.

III

TABLE OF CONTENTS

Question Presented

RiRAnhhGeASOESSSSS ALA ChdSDEESEARRhaenmenecccueccennssscueses I

Cees peenpsasncmnanenanio II

snes dansdinbtinksuensnstnatnnsccecsenes II

SER a IV

i caancavencesninscasocee 2

I ann ad cs eincninaemnereenecaenens 2

Constitutional Provisions and Ordinance Involved ...... 2

SS OLE 3

Reason for Granting the Writ—

Anti-“Pit-Bull” Laws Enforced by Penal Sanc-

tions Are Sweeping the Country and Have Gen-

erated Dozens of Constitutional Challenges in

the State and Federal Courts, With Mixed and

Inconsistent Results. While It May Be Difficult

for Legislative Bodies to Define a Particular

Canine “Breed,” Especially of New and Hetero-

~ geneous “Breeds,” It Is Surely Unconstitutional

for the Government to “Avoid” That Difficulty

by Providing No Definition at All, Thereby Pro-

moting Arbitrary Enforcement by the Police and

Making It Impossible for Citizens to Know If

They Are Encompassed by the Law ................... 10

EEE SEE A 20

Appendix—

Exhibit I (Kansas Supreme Court Decision) ...... Al

Exhibit II (City of Overland Park “pit bull” ordi-

a cemntnanattnane A23

Exhibit III (Overland Park Police “Standard

SI I Donnas cceSncesncneccocnvennsnscss A34

is |

TABLE OF AUTHORITIES

Cases

American Dog Owners Association, Inc. v. City of

Lynn, Mass., 533 N.E.2d 642 (Mass. 1989) ........ 1, 12,13

Coats v. City of Cincinnati, 402 U.S. 611 (1971) ... 14

Colautti v. Franklin, 439 U.S. 379, 395 (1979) ........ 18 |

Connally v. General Construction Co., 269 U.S. 385,

ID, Fite techiaktpe tics cetlictinctiate sii bcitcetatiliccedansieisione 13

Garcia v. Village of Tijeras, 767 P.2d 355 (N.M. App.

___ ERENCE EINE er een Den a eacisispiinaepicasintabeateciaabia 12

Grayned v. City of Rockford, 408 U.S. 104, 108-109

RES i AO AUER aL Fd veaN Pah SE CTR 14

Hearn v. City of Overland Park, ........ SUEE sasnieees (Kan.

PERRIER ce OR RP OREO TOE LEE solaniinbieaptahoalscdl passim

Jacobellis v. Ohio, 378 U.S. 184 (1964) 20000... a

Kolender v. Lawson, 461 U.S. 352, 358 (1983) .......... 14

Lanzetta v. New Jersey, 306 U.S. 451, 453 (1938) ... 13

Marks v. United States, 430 U.S. 188, 191 (1977) ... 13

Papachristou v. City of Jacksonville, 405 U.S. 156

| _, RBPRR Reema RO mene eae Neos TORE EEN ON Fae te Teron ORO 13, 18

Responsible Dog Owners of Florida, Inc. v. Board of

County Commissioners of Broward County, Case

/» No. 85-6743 (S.D. Fla., October 11, 1985) -............ 11, 12

Sentell v-New Orleans and Carrollton RR Company,

es i IE dinates iid th desrernnonitnninerernne 16

Smith v. Goguen, 415 U.S. 566 (1974) ....................... 13 |

Starkey v. Township of Chester, 628 F. Supp. 196

CR Ts I thin cecal eiecsarisiiclintilnanscetaslcaanniat 12 |

State v. Peters, 534 So.2d 760 (Fla. 3rd DCA 1988) ;

11, 12, 16

United States v. Harriss, 347 U.S. 612, 617 (1954) .... 13

United States v. Powell, 423 U.S. 87 (1975) ............ 14

Vanater v. Village of South Point, ........ F. Supp.

sini , Lexis 7221 (W.D. Ohio, Case No. C-I-87-708,

Re a iach sila chieesilennscrdashionsnrsanenientsiisninie 12, 15

Village of Hoffman Estates v. Flipside, 455 U.S. 489

aA ach abn ameiiuchinioroenhateidoniciceeenenaed 14, 18

Winters v. New York, 333 U.S. 507, 510 (1948) ........ 17

Constitutional Provisions and Ordinances

Fifth Amendment to United States Constitution ...... 2

Fourteenth Amendment to United States Constitution 2

City of Overland Park Ordinance DAC-1442 .......... passim

Other Authorities

“Efforts to Ban Pit Bulls Spark Arguments Over

Residents’ Safety and Civil Liberties,” Wall Street

iiss clin sAcenasncouniitinnmtiotionne 16

“Lo, Hear the Gentle Pit Bull!,” Harper’s, June, 1985 16

“The New Breed of Municipal Dog Control Laws—

Are They Constitutionai?” 53 Cinn. L. Rev. 1067-

ibd ui el SRA GOI I PS Ye a ae 12

No.

In the Supreme Court of the United States

OCTOBER TERM, 1989

RANDY HEARN, et al.,

Petitioners,

vs.

THE CITY OF OVERLAND PARK, KANSAS,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE KANSAS SUPREME COURT

Petitioners request the Court to issue a writ of cer-

tiorari to review the Kansas Supreme Court opinion dated

April 14, 1989 (Appendix Exhibit I), affirming the con-

stitutionality of a challenged municipal “pit bull” ordi-

nance (Appendix Exhibit II). The basis for seeking

review is that the Kansas Supreme Court has decided an

issue being litigated throughout the country which in-

volves an important Federal constitutional question which

ought to be addressed and resolved by-this Court. The

Kansas Supreme Court’s decision also conflicts with the

pertinent decisions of this Court applying the vagueness

doctrine to similar statutes and ordinances. In addition,

the Kansas Supreme Court decision arguably conflicts

with the views expressed (in obiter dictum) by the Massa-

chusetts Supreme Court in American Dog Owners Asso-

ciation, Inc. v. City of Lynn, Mass., 533 N.E.2d 642 (Mass.

1989).

OPINION BELOW

The Opinion of the Kansas Supreme Court is included

in the Appendix as Exhibit I.

JURISDICTION

The Kansas Supreme Court Decision is dated April

14, 1989. Petitioners (plaintifis/appellants below) timely

moved for rehearing and that motion was denied by the

Kansas Supreme Court June 9, 1989. The jurisdiction of

this Court is invoked under Supreme Court Rule 17.1(c)

and (b).

CONSTITUTIONAL PROVISIONS AND

ORDINANCE INVOLVED

1. The Due Process clauses of the Fifth and Four-

teenth Amendments to the United States Constitution.

2. Overland Park Ordinance DAC-1442, as amended,

which is reproduced in the Appendix as Composite Ap-

pendix Exhibit II.

STATEMENT OF THE CASE

On September 21, 1987 the City of Overland Park

adopted Ordinance DAC-1442 (Appendix Exhibit II)

which stated that “pit bull dogs” were henceforth deemed

“Dangerous Animals” under the city code (in the same

class as tigers, crocodiles, and cobras) and that their

ownership and possession would be subject to various

restrictions." Like many similar “pit bull” ordinances and

statutes which have swept through the United States in

recent years, the Overland Park ordinance was largely a

political reaction to press reports attributing vicious pro-

pensities to dogs which the press describes as “pit bulls.”

While most such ordinances have at least attempted to

describe the dogs being restricted, e.g. by providing for

the incorporation of the descriptive “breed standards”

promulgated by the national dog associations (the United

Kennel Club (“UKC”) and American Kennel Club

(“AKC”)), the Overland Park ordinance ‘“defines’’ the

target of the legislation cme “pit bull dog”) solely as

follows:

“any and all of the following dogs:

(a) the Staffordshire Bull Terrier breed of dogs;

(b) the American Staffordshire Terrier breed of

dogs;

1. The restrictions were (inter alia) that the animals be

kept ee or restrained and muzzled at all times, that warning

signs posted on the property, and that owners acquire a

$00 000 liability insurance policy. The ordinance provided for

the outright banishment from the city of any dog whose owner

failed to comply with the restrictions. The orcinance is also

enforced through criminal] sanctions, including substantial fines

and up to 30 days imprisonment (Appendix Exhibit II at Sec-

tion ITI).

(d) Dogs which have the appearance and char-

acteristics of being predominately of the

breeds of dogs known as Staffordshire Bull

Terrier, American Pit Bull Terrier, [or]

American Staffordshire Terrier.”

(Kansas Supreme Court opinion at page 2; em-

phasis supplied)

As acknowledged by the Kansas Supreme Court, :

therefore, the ordinance purports to restrict the owner-

ship and possession of any canine (including all common

mutts, mongrels and mixed-breed dogs) which a police

officer decides has the “predominant characteristics” of

either of the three named “breeds.” None of the key

terms of the ordinance (“characteristics,” “breed,” “Staf-

fordshire Bull Terrier,” “American Pit Bull Terrier,” and

“American Staffordshire Terrier’) is anywhere defined

or described; the ordinance does not provide any defini-

tion or description of the types of dogs whose “predom-

inant characteristics” are targeted by the law, nor does

it define what type of perceived “characteristics” deter-

mine a dog’s “predominant breed,” either as an element of,

or in contradistinction to, its appearance.

Not only does the ordinance lack a rudimentary de-

scription or definition of the targeted animals, it also fails

to provide any standard or methodology for making the

required distinctions between those animals which are en-

compassed by the ordinance and those which are not.”

2. The city police chief, presumably seeking to cure the

latter deficiency, adopted “Standard Operating Procedures”

(“SOPs”) which, among other things, provided the circular

direction that police officers were to decide if a dog had the

“predominant characteristics” of a targeted “breed” by using the

officer’s personal experience to judge the animal’s “predominant

characteristics.” (Appendix Exhibit III). The chief also di-

rected that “other” factors could be considered but did not

(Continued on following page)

As this Court can see from its own reading of the

Overland Park ordinance and “SOPs,” the city council

and police chief were thus quite generous in their dele-

gation of unleashed discretion to individual police officers

to decide not merely which dogs (and, therefore, which

dog owners) were encompassed by the ordinance, but

even in allowing them to decide how to go about de-

ciding which dogs and dog owners were encompassed.

by the ordinance.

Petitioners sued in the state trial court to enjoin

enforcement of the ordinance, challenging it primarily

on vagueness grounds. The trial court upheld the ordi-

nance and its decision was subsequently affirmed by the

Kansas Supreme Court.

As the Court will see in the Argument section below,

petitioners’ position is that the ordinance on its face

lacks even a rudimentary core meaning.’ If petitioners

are correct, then it does not really matter whether some

witnesses testified that they or others would be able to use

unarticulated standards of evaluation to identify the “pre-

dominant characteristics” of dogs, even to the point of

distinguishing a “49%” bulldog or boxer from a “51%”

American Pit Bull Terrier. While it is therefore unneces-

Footnote continued—

specify what those “other” factors might be. Remarkably, the

police chief did not include as a possible basis for identifying

a suspected “pit bull” information about the actual ancestry or

parentage of the dog, nor did he refer to the descriptive breed

standards promulgated by the UKC and AKC which contain a

detailed (if highly vague and ambiguous) “laundry list” of

physiological traits for the breeds listed in the ordinance.

3. Petitioners assert that the Court may determine for itself

that the core language of the ordinance is unconstitutionally

vague for failure to define its key terms or state how one is to

go about defining those terms, i.e., identifying the standards of

evaluation to use in deciding which animals and animal owners

are subject to the ordinance.

sary to describe the trial testimony in elaborate detail, a

brief synopsis of that testimony will nevertheless be help-

ful to the Court because it proves petitioners’ theoretical

point that the Ordinance lacks objective standards of en-

forcement or compliance.

Dr. I. Lehr Brisbin testified as an expert witness

for the plaintiffs‘ Dr. Brisbin testified that even with

his advanced degrees and expertise and long experience

in animal identification and taxonomy, he could neither

comply with nor enforce the Overland Park ordinance.

Dr. Brisbin explained that in the case of dogs, a “breed”

refers only to the dog’s registration with the UKC or

AKC, which registration is based on the animal’s ped-

igree (parentage) (TT 52-53). Dr. Brisbin testified that

there is no way to determine the “breed” of a particular

dog aside from the UKC or AKC registries, for there

is nothing in the appearance of a dog which determines

its gene pool. Dr. Brisbin also noted that mixed-breed

dogs (a group which includes most dogs in the United

States) frequently “look like” registry breeds they ac-

tually have no connection with, or fail to “look like”

those registry breeds with which they actually share

genetic material (TT 55). Dr. Brisbin confirmed that

there is no scientific or objective way to measure or

identify any particular dog as a member of a “breed,”

and more specifically, that there was no way to identify

a dog as “predominately” “American Pit Bull Terrier” or

“predominately” any other of the named “breeds,” which

“breeds” have only recently been recognized and are

4. Dr. Brisbin holds advanced science degrees, including a

Ph.D. in zoology, and has over 30 years experience in animal

behavior and taxonomy and anatomy. Dr. Brisbin has been

accepted as an expert witness in numerous animal behavior and

identification cases (Trial Transcript 43-50). Dr. Brisbin is also

intimately familiar with the “breed standards” of the UKC and

AKC for all three of the named dog “breeds.” (TT 51).

eee

therefore particularly miscellaneous in appearance (TT 65-

70, 152, 154, 156, 157; see footnote 8, infra).

Dr. Brisbin further testified that he had discussed

the concept of “predominant appearance and character-

istics” with numerous animal control officers and hun-

dreds of dog owners, and had discovered that no one

agreed with each other about the correct or ideal “ap-

pearance” of the “breeds” named in the ordinance (TT

56-57).

Fred Miller, the President of the United Kennel

Club; also testified for the plaintiffs. Mr. Miller, who

has 50 years experience with registered dogs (TT 233-34)

and is indeed responsible for determining both the breed

names and physiological “standards” of the breeds (TT

233-35), confirmed that he could neither enforce nor com-

ply with the Overland Park ordinance. Mr. Miller noted

that the UKC and AKC breed standards themselves re-

vealed the complete diversity of physical traits within

the three breeds named in the ordinance; permitting, for

example, a dog of any color or combination of colors,

and any size or weight, to fully satisfy the “breed stan-

dards” for one or the other of the three breeds (TT

256-57). (See footnote 8, infra).. Mr. Miller explained

that for a dog to be registered with the UKC there must

therefore be evidence of the dog’s ancestry back for

three generations (TT 258-59), and that nobody could

determine a dog’s predominant “breed” merely by look-

ing at the dog. Echoing Dr. Brisbin, Mr. Miller noted

that mixed-breed dogs often appear to be representatives

of breeds which they have no known connection to, and

that anyone’s opinion about the “breeding” of a dog,

based on the dog’s appearance, is just that, an opinion

which could neither be refuted nor proved (TT 239-40,

276-77). Mr. Miller also confirmed that animal control

officers seldom agree in their evaluations of a dog’s

“breeding,” especially with respect to the heterogeneous

breeds identified in the ordinance (TT 240-44).

Dr. Clifford, a veterinarian, testified for the city.

Even Dr. Clifford acknowledged that he did not know if

citizens could determine which dogs were targeted by

the ordinance, and Dr. Clifford went on to state that of-

ficers could distinguish dogs “in many instances” so long

as they had special training (TT 342-343). Dr. Clifford

acknowledged that the dogs referred to in the ordinance

could have a wide diversity of appearances (TT 256-257,

454-456). Dr. Clifford further acknowledged that even

he could err in identifying a breed of a dog based on

physical characteristics alone, and that law enforcement

officers could not make such identifications with a high

degree of certainty. Dr. Clifford also admitted that dogs

having some boxer or mastiff ancestors could readily be

misidentified as one of the targeted breeds and, indeed,

that he himself had made such misidentifications (TT

458-461). Proving that very point, Dr. Clifford proceeded

to misidentify the “breeds” of dogs shown in photographs

presented to him (TT 474-478; Volume III, page 40).°

Another witness for the city was officer Tracy Allen

who proceeded to assert that the police chief’s SOPs made

it impossible to misidentify a dog (TT 578). Officer Allen

then identified a Neapolitan Mastiff as a pit bull, and

another non-targeted dog as subject to impoundment

under the ordinance (TT 592-596).

5. Dr. Clifford stated that a number of the dogs he was

shown were encompassed by the ordinance when in fact they

were known to be other, non-regulated, breeds; he also “excused”

from the ordinance dogs which were in fact “pure bred” mem-

bers of one or another of the targeted breeds (TT 96-97, 480,

485, 482, 483, 494).

Accordingly, while the city did produce witnesses

who testified that they could identify the dogs targeted

by the ordinance, their testimony actually reflected that

- nobody could with any reliability or confidence. More

importantly, the trial transcript reflects that nobody

could articulate the standards of evaluation which were

to be used for such identification purposes, because of

course the ordinance itself failed to identify what those

standards might be.

The trial court nevertheless upheld the ordinance and

the Kansas Supreme Court affirmed, relying substantially

on Justice Potter Stewart’s comment in Jacobellis v. Ohio,

378 U.S. 184, 197 (1964), that he could not define “hard

core pornography” but knew it when he saw it.

REASON FOR GRANTING THE WRIT

Anti-‘‘Pit-Bull’’? Laws Enforced by Penal Sanctions

Are Sweeping the Country and Have Generated Doz-

ens of Constitutional Challenges in the State and Fed-

eral Courts, With Mixed and Inconsistent Results.

While It May Be Difficult for Legislative Bodies to

Define a Particular Canine ‘‘Breed,’’ Especially of

New and Heterogeneous ‘‘Breeds,’’ It Is Surely Un-

constitutional for the Government to ‘‘Avoid’’ That

Difficulty by Providing No Definition at All, Thereby

Promoting Arbitrary Enforcement by the Police and

Making It Impossible for Citizens to Know If They

Are Encompassed by the Law.

The trial transcript and exhibits confirmed that no

one can reliably or consistently determine that one dog

is encompassed by the Overland Park ordinance while

another is not. Much more importantly, the trial testi-

mony and evidence confirms the self-evident if theoret-

ical proposition that the Overland Park ordinance does

not identify any standards for making such distinctions.

As reflected by the trial testimony, there are many ways

of attempting to “identify” a dog or “breed” of dog:

Through the dog’s registration with a private association,

through the subjective opinions of the dog’s owner,

through behavioral tests, through the use of one of doz-

ens of published dog books and charts, through bone

and teeth measurements, through the AKC or UKC

“laundry lists” of physical characteristics, through the

private and unarticulated mental “image” of the ob-

server, through knowledge of the dog’s actual ancestry,

—

ee |

and so forth.° Although breed-specific legislation may be

similar to restrictions on pornography in the sense that

both dog “breeds” and “pornography” are very difficult

to define, the critical difference is that the City of Over-

land Park simply made no effort whatever to provide a

definition or a standard of evaluation.

Anti-“pit bull” laws and ordinances are now sweeping

the country, and constitutional challenges on vagueness

grounds have been mounted in dozens of counties and

states, with inconsistent results. The challenged ordi-

nances all suffer from vagueness problems but this ordi-

nance is among the very worst offenders of the specificity

requirement because it does not even attempt to offer a

standard for the police or dog owners to use when trying

to determine whether a particular dog is subject to the

ordinance. The Overland Park ordinance thus lacks even

a rudimentary core of meaning, unlike (for example)

other “pit bull” ordinances which at least attempted to

describe the targeted animals by incorporating the AKC

or UKC “breed standards.””

It is especially important for this Court to grant the

requested writ because of the number of ordinances and

6. Petitioners do not concede that each of these identifica-

tion methods would, standing alone, avoid the vagueness prob-

lem. For example, the AKC and UKC breed standards are

themselves extremely vague, and indeed, in an unreported deci-

sion, one federal judge declared them too vague to support such

an ordinance. Responsible Dog Owners of Florida, Inc. v. Board

of County Commissioners of Broward County, Case No. 85-6743

(S.D. Fla., October 11, 1985). However, a legislative definition

of the targeted dogs could readily provide the required degree

of specificity, provided the legislative body can agree on a set

of physical or other objective traits (e.g., parentage or regis-

tration) of the dogs to be regulated.

7. For uw recent reported decision which contains the UKC

and AKC standards, see State v. Peters, 534 So.2d 760 (Fla.

3rd DCA 1988).

resulting lawsuits which have occurred in the last five

years. See especially State v. Peters, supra; ADOA v. City

of Lynn, 533 N.E.2d 642 (Mass. 1989); Garcia v. Village of

Tijeras, 767 P.2d 355 (N.M. App. 1988) (the latter case

sustaining an ordinance which totally banned certain dog

breeds from the municipality); Starkey v. Township of '

Chester, 628 F. Supp. 196 (E.D. Pa. 1985); Vanater v. Vil- ~ |

lage of South Point, ........ F. Supp. ........ , Lexis 7231 (W.D.

Ohio Case No. C-I-87-708, June 29, 1989); Responsible Dog

Owners of Florida, Inc. v. Board of County Commissioners

of Broward County, Case No. 85-6743 (S.D. Fla., October

11, 1985) (declaring a “pit bull” ordinance unconstitution-

ally vague, and thereafter dismissing the suit based on

the abstention doctrine). See also, “The New Breed of

Municipal Dog Control Laws—Are They Constitutional?”

53 Cinn. L. Rev. 1067-1080, 1984. (There have in addition

been numerous other unreported decisions by trial courts

in Florida, Washington, Minnesota and California declar-

ing anti-pit bull ordinances unconstitutional on vagueness

grounds. )

Although the Massachusetts Supreme Court in City

of Lynn, supra, was not required to rule directly on the

vagueness question (due to an implied and unintentional

repeal of the ordinance by the City which mooted the

case), the court did specifically state:

“[T]here may, indeed, be some dogs which, because

of registration, known parentage or close conformance

in appearance to commonly accepted standards repre- |

sentative of ‘Pit Bulls’ would be ‘commonly under-

stood’ to be ‘Pit Bulls.’ The evidence . . . indicated, |

however, that some dogs might appear to be ‘Pit Bulls’

yet belong to a breed ‘commonly understood’ not to

be ‘Pit Bulls,’ and that some dogs ‘commonly under-

stood’ by the owner or the dog registry to be a breed

) |

‘known as Pit Bull’ might not appear to be ‘Pit Bulls,’

and so escape the notice and enforcement of the Lynn

dog officers.

Unlike an ordinance which generally prohibits the

keeping of a ‘vicious dog,’ enforcement of which in-

volves questions of fact whether the particular dog

is vicious or known by its owner to be vicious. . .

[this] ordinance depends for enforcement on the sub-

jective understanding of dog officers of the appear-

ance of an ill-defined ‘breed,’ leaves dog owners to

guess at what conduct or dog ‘look’ is prohibited, and

requires ‘proof’ of a dog’s ‘type’ which, unless the dog

is registered, may be impossible to furnish. Such a

law gives unleashed discretion to the dog officers

charged with its enforcement, and clearly relies on

their subjective speculation whether a dog’s physical

characteristics make it what is ‘commonly understood’

to be a ‘Pit Bull’.”

(Id., at 646-47)

The vagueness doctrine is of course a venerable one

which invalidates laws if persons of common intelligence

must necessarily guess at their meaning and differ as to

their application. Connally v. General Construction Co.,

269 U.S. 385, 391 (1926). The vagueness doctrine pro-

tects against two evils: first, it requires the government

to give persons of ordinary intelligence fair warning that

certain conduct is forbidden, U.S. v. Harriss, 347 USS.

612, 617 (1954), a requirement fundamental to our con-

cept of constitutional liberty. Marks v. United States, 430

U.S. 188, 191 (1977); Papachristou v. City of Jacksonville,

405 U.S. 156 (1972); Smith v. Goguen, 415 U.S. 566 (1974);

Lanzetta v. New Jersey, 306 U.S. 451, 453 (1938). Second,

the vagueness doctrine is meant to prevent arbitrary and

discriminatory law enforcement. Grayned v. City of Rock-

ford, 408 U.S. 104, 108-109 (1972).

As this Court has stated, vague laws offend several

‘important values. First, because man is assumed free to

steer between lawful and unlawful conduct, laws must

give the person of ordinary intelligence a reasonable op-

portunity to know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by not

providing fair warning. Second, if discriminatory law en-

forcement is to be prevented, laws must provide explicit

standards for those who apply them. A vague law im-

permissibly delegates basic policy matters to policemen,

judges and juries for resolution on an ad hoc and subjec-

tive basis, with the attendant dangers of arbitrary and

discriminatory application. Kolender v. Lawson, 461 U.S.

352, 358 (1983). Thus the principal purpose of the doc-

trine is to require that iegislation “establish minimal guide-

lines to govern law enforcement.” Id. The Overland

Park ordinance does not establish minimal guidelines; it

does not establish any guidelines at all.

Because no first amendment rights are involved in

the ownership of a dog, petitioners must demonstrate

that the ordinance is impermissibly vague in all its appli-

cations. See United States v. Powell, 423 U.S. 87 (1975);

Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).

However, this case does not «involve an ordinance

which contains an “imprecise” standard, but rather one

containing no standards at all. Coats v. City of Cincin-

nati, 402 U.S. 611 (1971). There is simply no core of

meaning or identified standard of evaiuation in the Over-

land Park ordinance for citizens or the police to use in

determining whether a particular dog has the “predom-

inant” characteristics of the named yet utterly undefined

“breeds.” In this case, unlike many of the other cases

(either sustaining or invalidating pit bull ordinances),

the city’s police officers have been afforded uninhibited

discretion not only to determine which individual dogs

(and dog owners) are subject to the ordinance, but more

outrageously, even to decide how they go about making

such determinations. Under the Overland Park ordi-

nance the police in some cases may apply the ordinance

to a particular dog because they decide to evaluate the

dog under the AKC or UKC breed standards (which are

themselves extremely vague); in other cases the police

may include or exclude a particular dog based on their

own unarticulated mental picture of what the targeted

breeds “ought to look like,” or based on private photo-

graphs which they carry in their wallets; in other cases,

they may confiscate a dog or arrest its owner based on

information concerning the dog’s suspected parentage

(perhaps unknown even to the owner), or based on

statements in one or another dog book or manual. (In-

deed, as noted by the U.S. District Court in Vanater,

supra, “pit bulls” are even thought to have distinctive

behavioral traits, including supposed ,climbing, hanging,

and weight-pulling abilities. Such supposed behavioral

characteristics offer still another possible basis for ideo-

syncratic decision-making by the police.) Likewise, for

the vast majority of dog owners whose dogs are of mixed

or unknown ancestry, it is obviously impossible for them

to determine whether their pets are subject to the ordi-

nance, and even more importantly, it is impossible for

them to determine how to go about determining whether

their pets are subject to the ordinance. Since the ordi-

nance does not spell out how the police are to distinguish

dogs, and since at least a half-dozen different methodol-

ogies are possible, every police decision is fundamentally

unpredictable. Quite simply, no rule of law is possible

under the Overland Park ordinance because every en-

forcement decision can be based on a unique set of

evaluations and standards.

Accordingly, this case raises vagueness issues even

more fundamental than the underlying problem of iden-

tifying a particular dog “breed”? based on subjective

aesthetic characteristics, which is itself a troublesome

task similar to the task of identifying “hard core pornog-

raphy.”* The latter problem may at least be ameliorated

by the government specifying some definition or stan-

dard for making the critical distinctions. The City is

surely required to provide some definition of what is

forbidden, or at least to identify where such a defini-

8. Indeed, this Court once noted the difficulty in deter-

mining the breed of a dog, see Sentell v. New Orleans and

Carrollton RR Company, 166 U.S. 698, 701 (1897). As the

Florida appellate court noted in State of Florida v. Peters, supra,

“pit bulls” are particularly difficult to distinguish because the

breed is new and relatively “wide open.” (534 So.2d at 768).

See “Efforts to Ban Pit Bulls Spark Arguments Over Residents’

Safety and Civil Liberties,” Wall Street Journal, July 6, 1987

at page 13. (“[P]it bull is a generic term that applies to the

American Pit Bull Terrier, the American Staffordshire Terrier,

and such mixed breeds as the Staffordshire bull terrier and the

venerable bulldog.”); Hearne, “Lo, Hear the Gentle Pit Bull!,”

Harper’s, June, 1985, at 59, 60-61 (noting the confusion over

what is a pit bull). The fundamental source of difficulty is

that respondent’s “breed” construct is a non-scientific, indeed

anti-scientific, taxonomic classification which only proves Kant’s

warning that concepts without percepts are meaningless. Unlike

tigers, crocodiles and cobras, which are scientifically defined, all

dogs targeted by the Ordinance can and do “breed” with all other

dogs, and so by definition are members of a single species (nor

do the targeted “breeds” constitute a subspecies, which are based

on geographic variation; See, Stephen Jay Gould, The Flamingo’s

Smile, Chapter 12 (Ontario, 1985)). Since there is no existing

taxonomic method of identifying the targeted “breeds,” the Kan-

sas Supreme Court was quite correct to analogize the case to

those involving obscenity, but the court overlooked the obvious

fact that all valid obscenity laws must provide an intelligible

definition of obscenity, in order that citizens and police can dis-

tinguish the obscene from the merely pornographic.

tion is to be found, but the Overland Park ordinance

contains no definition whatever and no means of finding

a definition elsewhere. Winters v. New York, 333 US.

507, 510 (1948).

Perhaps an apt analogy to the Overland Park ordi-

nance would be the enactment of an ordinance restricting

the display of works of art which were “Predominantly

Abstract,” or music which was “Predominantly Polka,”

or (to eliminate the unwanted First Amendment issue)

zoning out restaurants with menus “Predominantly Haute

Cuisine.” If challenged, the government in each such

case could assuredly locate professors, critics, and gas-

trophiles to testify, quite sincerely, that they could defin-

itively identify each of the restricted subjects. As in

the instant case such t.stimony would only underscore

the underlying problem, for laws can not be based on

opinions concerning the characteristics of different types

of art or music (or dogs), without some preliminary

agreement on the definition of the critical terms. (The

government might provide, for example, that any music

containing an accordion is ipso facto ‘Predominantly

Polka,” a definition which may be overbroad but at

least is intelligible). Likewise, Overland Park could have

defined the targeted dogs by listing their traits in terms

of weight, size, color or other objective characteristics, or

by identifying the extra-legislative source of such defini-

tion. In fact, however, the Overland Park council sought

to regulate an animal called a “pit bull,” which has no

more intrinsic definition than Abstract art or polka but,

realizing the difficulty in definition, perversely decided

to “solve” the definitional problem by having no defini-

tion at all, thereby allowing every decision to be an

ad hoc one. The Overland Park “pit bull” ordinance

is thus akin to the hypothetical ordinance regulating

Modern Art “defining” Modern art to mean art

“which has the appearance and characteristics of

being predominately of the schools of art known as

abstract art, expressionist art, or impressionist art”

and leaving all further questions of definition to the in-

dividual police officer and the artistic taste of the jury.

The Court should also note that the Overland Park

ordinance contains no mens rea requirement, which might

partly ameliorate the vagueness problem. See Colautti v.

Franklin, 439 U.S. 379, 395 (1979), in which the Court

placed considerable emphasis upon the absence of a mens

rea requirement as a reason for holding a law unconstitu-

tiouauy vague. Similarly in Hoffman Estates v. Flipside,

supra, at 499, the Court held that a mens rea requirement

mitigates a law’s vagueness. See also, Papachristou v.

City of Jacksonville, supra, at 162-163, in which the Court

noted that the average householder could not possibly

know the intended meaning of the words in the Jackson-

ville vagrancy ordinance, “nor are they protected from

being caught in the vagrancy net by the necessity of hav-

ing a specific intent to commit an unlawful act.”

Finally, the Court should note that no great judicial

deference is required in this case. Local governments

already have abundant unenforced laws designed to control

vicious dogs, based on relatively objective standards of

behavior, as well as laws prohibiting free-roaming dogs.

Those laws are seldom if ever enforced, for budgetary

reasons, thus permitting dog attacks to occur. “Pit bull”

ordinances are merely political devices for appearing to

deal with a problem which in fact is readily controlled

simply by the hiring of a few additional animal control

officers and the enforcement of existing leash laws, with-

out any of the constitutional infirmities of the Overland

Park ordinance. At the same time, while the possession

See CUE NE ESE eee,

ee ee Se

of a dog may not have special constitutional protection,

the threatened banishment of a family pet certainly en-

croaches upon privacy interests, personal freedoms, and

family rights which ought to transcend in importance the

regulation of mere “property” rights. Given the fact that

man and dog have maintained such a close association

over hundreds of thousands of years, and have indeed

evolved as they have in part because of that association,

it would certainly be a strange jurisprudence for the

family dog to be relegated to the status of mere prop-

erty, lower even in rank than firearms and lewd photo-

graphs.

CONCLUSION

The Court should grant the petition for writ of cer-

tiorari to the Kansas Supreme Court and, after full ar-

gument on the merits, should rule that the Overland Park

“pit bull” ordinance is unconstitutionally vague.

Tuomas M. PriauM, Esq.

(Counsel of Record)

Rocer J. SCHINDLER

Srmon, SCHINDLER AND SANDBERG, P.A.

1492 South Miami Avenue

Miami, Florida 33130

(305) 358-8611

—and—

DANIEL R. JONES, Esq.

DEVRIES & ASSOCIATES

1006 Grand Avenue, Suite 1122

Kansas City, Missouri 64106

(816) 421-5707

Attorneys for Petitioners

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies

of the foregoing petition for writ of certiorari were fur-

nished by mail and one was hand-delivered to Michael R.

Santos, Assistant City Attorney, 8500 Santa Fe Drive,

Overland Park, Kansas 66212 on this 6th day of Sep-

tember, 1989.

THomas M. PFLauM, Esa.

Smmon, SCHINDLER AND SANDBERG, P.A.

1492 South Miami Avenue

Miami, Florida 33130

(305) 358-8611

APPENDIX

APPENDIX I

IN THE

SUPREME COURT OF THE STATE

OF KANSAS

No. 62,045

RANDY L. HEARN, et al.,

Appellants, —

THE CITY OF OVERLAND PARK, KANSAS,

Appeilee.

SYLLABUS BY THE COURT

In an action to enjoin the City of Overland Park from

enforcing an ordinance regulating the ownership of pit

bull dogs within the city, the record is examined and it

is held: (1) The ordinance is not unconstitutionally

vague or overbroad; (2) the ordinance does not violate

the due process rights of plaintiffs under the United States

and Kansas Constitutions; (3) the ordinance does not

violate the equal protection clauses of the United States

and Kansas Constitutions; and (4) the district court did

not err in dismissing the plaintiffs’ claim for damages pur-

suant to 42 U.S.C. § 1983 (1982).

Appeal from Johnson district court; JANETTE SHEL-

DON, judge. Opinion filed April 14, 1989. Affirmed.

Daniel R. Jones, of Christen, deVries & Pigeon, of

Kansas City, Missouri, argued the cause, and Judith K.

Macy, of Law Offices of Michael W. Laster, of Overland

Park, was with him on the briefs for appellants.

Michael R. Santos, assistant city attorney, argued the

cause and was on the brief for appellee.

The opinion of the court was delivered by

ALLEGRUCCI, J.: The plaintiffs seek to enjoin the

City of Overland Park from enforcing an ordinance regu-

lating the ownership of pit bulls within the city. The

plaintiffs are thirteen residents of Johnson County, Kan-

sas, who own dogs kept within the City of Overland Park,

Kansas. In their petition filed with the district court, the

plaintiffs contended that the ordinance was unconstitu-

tionally vague and overbroad, and violated their rights to

due process and equal protection of the laws. The petition

also included a claim for damages pursuant to 42 U.S.C.

§ 1983 (1982). The district court upheld the constitution-

ality of the ordinance, and found it to be a valid and en-

forceable exercise of the city’s police power. The plain-

tiffs now appeal.

On September 21, 1987, the Overland Park city council

adopted an ordinance defining the “pit bull dog” as a

“dangerous animal,” within the meaning of Overland Park

Municipal Code Ch. 6.10. As subsequently amended, the

ordinance defines a “pit bull dog” as

“any and all of the following dogs:

“(a) the Staffordshire Bull Terrier breed of dogs;

“(b) the American Staffordshire Terrier breed

of dogs;

“(c) the American Pit Bull Terrier breed of dogs;

“(d) Dogs which have the appearance and char-

acteristics of being predominantly of the breeds of

dogs known as Staffordshire Bull Terrier, American

Pit Bull Terrier, [or] American Staffordshire Terrier.

“The registration of a dog at any time as a pit bull

or any of the dogs listed above shall constitute prima

facie evidence the animal is prohibited by this section.”

Other sections of the ordinance require the owner of a

pit bull dog to restrain the animal indoors or to a con-

fined kennel. If the animal is removed from this en-

vironment, it must be secured by a leash and muzzle. The

owner is required to prominently display a “Beware of

Dog” sign on the premises. The owner is also required

to purchase $50,000 in single-incident liability insurance,

to compensate for any damage caused by the animal.

The plaintiffs contend that the district court erred

in concluding that the ordinance was not impermissibly

vague and also in.concluding that the plaintiffs had no

standing to raise a claim of vagueness. We must, there-

fore, first determine if the plaintiffs had standing to raise

vagueness. The district court found that nine of the

plaintiffs had identified their animals as pit bull dogs, and

have registered them as such animals with the City of

Overland Park, Kansas. As to plaintiffs Barbara LeClerq

Boran and William O. Mitchum, the court found that they

“at one time registered their dogs as ‘pit bulls’ with the

City of Overland Park, but have since that time had their

dogs reidentified by a licensed veterinarian as another

breed mix, and as such have no standing in this lawsuit.”

Finally, the district court found that two plaintiffs, Myrtle

LeClerg and Maxine Mitchum, had failed to establish that

they owned animals separate and distinct from those

owned by Barbara Boran and William Mitchum.

The district court correctly found that nine plaintiffs

did not possess standing to raise the present vagueness

argument. One to whose conduct a statute clearly ap-

plies may not-successfully challenge it for vagueness.

Parker v. Levy, 417 U.S. 733, 756, 41 L. Ed. 2d 439, 94

S. Ct. 2547 (1974). Having acknowledged that their

animals are pit bull dogs, these plaintiffs cannot complain

of the allegedly vague nature of the ordinance. How-

ever, such is not the case with regard to the four remain-

ing plaintiffs, William O. Mitchum, Maxine Mitchum,

Barbara LeClerq Boran, and Myrtle LeClerq.

That the animals owned by these plaintiffs may once

have been registered as pit bull dogs, but subsequently

have been reidentified as other breeds, does not establish

that they do not fall within the scope of the challenged

ordinance. Although identified as another breed, the

animals may still fall within Subsection (d) of the portion

of the ordinance defining pit bull dogs. Subsection (d)

defines as a pit bull dog a dog which has “the appearance

and characteristics of being predominantly” those of the

other specifically designated breeds. The district court

erred in finding these plaintiffs did not have standing to

raise vagueness. To resolve the claims of these plaintiffs,

therefore, we must turn to the substance of their vague-

ness claim.

In considering the issues raised in the present appeal,

it is necessary to keep in mind the rules relating to the

review of the constitutionality of legisiation. This court

presumes that the challenged legislation is constitutional.

All doubts concerning the legislation must be resolved in

favor of its validity. Before the legislation may be

stricken down, it must clearly appear that it violates the

Constitution. It is the duty of the court to uphold the

ee ee

legislation under attack, if possible, rather than defeat it;

if there is any reasonable way to construe the statute as

constitutionally valid, that should be done. Lakeside Vil-

lage Improvement Dist. v. Jefferson County, 237 Kan. 106,

113-14, 697 P.2d 1286 (1985).

With these rules in mind, we first consider plaintiffs’

contention that the district court erred in finding that the

city ordinance was not unconstitutionally vague.

Legislation is unconstitutionally vague when one can-

not reasonably understand that his contemplated conduct

is within the scope of that proscribed by the legislation.

See United States v. Harriss, 347 U.S. 612, 617, 98 L. Ed.

989, 74 S. Ct. 808 (1954).

“As generally stated, the void-for-vagueness doc-

trine requires that a penal statute define the crim-

inal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary

and discriminatory enforcement.” Kolender v. Law-

son, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct.

1855 (1983).

However, “ultimate, god-like precision” is not required

by the Constitution. Miller v. California, 413 U.S. 15,

28, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). The Consti-

tution “does not require impossibie standards’; it is sat-

isfied by statutory language which “conveys sufficiently

definite warning as to the proscribed conduct when mea-

sured by common understanding and practices. The Con-

stitution requires no more.” United States v. Petrillo,

332 U.S. 1, 7-8, 91 L. Ed. 1877, 67 S. Ct. 1538 (1947).

That there may be marginal cases in which it is difficult

to determine the side of the line on which a particular

fact situation falls is no sufficient reason to hold the

language too ambiguous to define a criminal offense.

Miller v. California, 413 U.S. at 27 n.10; United States

v. Petrillo, 332 U.S. at 7; Robinson v. United States, 324

U.S. 282, 285, 286, 89 L. Ed. 944, 65 S. Ct. 666 (1945);

see United States v. Harriss, 347 U.S. at 624 n.15.

Because of the strong presumption in favor of the

constitutional validity of legislation, statutes are not |

“ ‘automatically invalidated as vague simply because dif- ,

ficulty is found in determining whether certain marginal

offenses fall within their language.’” Parker v. Levy,

417 U.S. at 757 (quoting United States v. National Dairy

Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 83 S. Ct. 594

[1963]). In this regard, the United States Supreme

Court has noted that “the law is full of instances where

a man’s fate depends on his estimating rightly, that is,

as the jury subsequently estimates it, some matter of

degree.” Nash v. United States, 229 U.S. 373, 377, 57

L. Ed. 1232, 33 S. Ct. 780 (1913).

It is important to note that we are not dealing with

an ordinance that limits constitutionally protected con-

duct. Because the present ordinance dces not infringe

upon explicit constitutional guarantees, such as freedom

of speech, the ordinance should be upheld unless it “is

impermissively vague in all of its applications.” Hoffman

Estates v. Flipside, Hoffman Estates, 455 U.S. 489, 495,

71 L. Ed. 2d 362, 102 S. Ct. 1186, reh. denied 456 US.

950 (1982). The plaintiffs must establish that the ordi- \

nance is unconstitutional on its face, which means it

must be demonstrated to be “ ‘invalid in toto—and there-

fore incapable of any valid application.’” Hoffman Es-

tates, 455 U.S. at 494 n.5 (quoting Steffel v. Thompson,

415 U.S. 452, 474, 39 L. Ed. 2d 505, 94 S. Ct. 1209 [1974]).

In order to establish that legislation is unconstitutional

on its face, the person challenging the legislation must

establish that it is vague “‘not in the sense that it re-

quires a person to conform his conduct to an imprecise

but comprehensible normative standard, but rather in

the sense that no standard of conduct is specified at all.’ ”

Hoffman Estates, 455 U.S. at 495 n.7 (quoting Coates

v. City of Cincinnati, 402 U.S. 611, 614, 29 L. Ed. 2d

214, 91 S. Ct. 1686 [1971]).

This court has also discussed the requirements for

a due process challenge to legislation as impermissibly

vague. The test to determine whether a criminal stat-

ute is unconstitutional as being vague and indefinite is

whether its language conveys a sufficiently definite

warning as to the conduct proscribed when measured

by common understanding and practice. A statute which

either requires or forbids the doing of an act in terms

so vague that persons of common intelligence must nec-

essarily guess at its meaning and differ as to its appli-

cation is violative of due process. State v. Rose, 234 Kan.

1044, 1045-46, 677 P.2d 1011 (1984); State v. Lackey,

232 Kan. 478, 479, 657 P.2d 40 (1983); State v. Carpenter,

231 Kan. 235, 237, 642 P.2d 998 (1982); State v. Huffman,

228 Kan. 186, 192, 612 P.2d 630 (1980); State v. Norris,

226 Kan. 90, 91-92, 595 P.2d 1110 (1979); Kansas City

Millwright Co., Inc. v. Kalb, 221 Kan. 658, 663, 562 P.2d

65 (1977). A statute is not invalid for vagueness or

uncertainty where it uses words of commonly under-

stood meaning. State v. Rose, 234 Kan. at 1046; In re

Brooks, 228 Kan. 541, 544, 318 P.2d 814 (1980); Kansas

City Millwright, 221 Kan. at 663. At its heart the test

for vagueness is a common-sense determination of fun-

damental fairness. 221 Kan. at 663.

The plaintiffs contend that, owing to the inherent

difficulty in identifying the “breed” of a given dog, the

city ordinance is impermissibly vague. The plaintiffs

contend that the term “breed” is so imprecise that many

dog owners will be uncertain whether their animal is

covered by the ordinance.

We recognize the difficulty in attempting to iden-

tify a dog by breed with absolute certainty. That fact

alone does not render an ordinance unconstitutionally

vague. Perhaps Justice Potter Stewart articulated the |

dilemma best in Jacobellis v. Ohio, 378 U.S. 184, 197,

12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964):

“I have reached the conclusion, which I think is

confirmed at least by negative implication in the

Court’s decisions since Roth and Alberts, that under

the First and Fourteenth Amendments criminal laws

in this area are constitutionally limited to hard-core

pornography. I shall not today attempt further to

define the kinds of material I understand to be em-

braced within that shorthand description; and per-

haps I could never succeed in intelligibly doing so.

But I know it when I see it, and the motion picture

involved in this case is not that.”

The ordinance at issue identifies three specific breeds

of dogs or dogs which “have the appearance and char-

acteristics of being predominantly of” these breeds. The

defendant city introduced evidence that “breed” or “pheno-

type” is a commonly used and understood term for the

physical appearance or description of an animal. The

three specific breeds of dogs listed in the city ordinance

are generally similar in appearance, and may be identified

by their physical characteristics.

In implementing the ordinance, the Overland Park

Police Department has adopted rules for the interpretation

) —_—

and implementation of the ordinance. These rules specify

that the term “predominantly,” in the context of subsec-

tion (d) of the ordinance.

“shall mean that the officer has knowledge through

identification procedures, admission by owner, keeper,

or harborer, or otherwise that the animal is more than

fifty percent pit bull. Predominantly shall further

mean that the animal exhibits the physical character-

istics of a pit bull more than that of any other breed

of dog. If an officer cannot determine the predomi-

nant breed of the animal in question as pit bull, the

animal shall not be subject to the provisions of

O.P.M.C. 6.10.020 unless the animal is later positively

identified as a pit bull by a licensed ve-erinarian.”

In its memorandum opinion, the district court stated:

“Pit bull dogs are different from other dogs and,

because they arz different, they are distinguishable.

Their physical features include a short, squatty body

with developed chest, shoulders, and legs; a large, flat

head; muscular neck and a protruding jaw. The ap-

pearance of these dogs typifies strength and athlet-

icism. They can climb trees, they have extremely

strong jaws and biting power, and they tend to clamp

on to something and not let go.”

The court noted that the determination of whether a dog

is, or is not, a pit bull will be a matter of judgment in a

few cases. However, the ordinance, as interpreted by

the animal control division of the Overland Park Police

Department, applies only to animals in which pit bull dog

characteristics predominate. As the court noted:

“There will be instances of mixed breed dogs where

it will be difficult or perhaps even impossible to

Al0

determine whether or not a certain dog falls under

the regulations of the ordinance. However, a few

questionable cases will not cause a finding of uncon-

stitutionality of an ordinance due to vagueness.”

The present ordinance is interpreted to exclude doubtful

cases from the scope of its regulation and therefore does

not create an impermissibly vague standard.

The New Mexico Court of Appeals upheld a similar

local ordinance from a challenge for impermissive vague-

ness in Garcia v. Village of Tijeras, ........ + ee , 767

P.2d 355 (Ct. App. 1988). The village ordinance pro-

hibited the ownership or possession in the village of “any

dog of the breed known as American Pit Bull Terrier.”

dae N.M. at ........, 767 P.2d at 356. The Court of Appeals

concluded that there was sufficient evidence in the record

to support the findings of the trial court.

“The trial court found that the American Pit

Bull Terrier is a recognized breed of dog readily

identifiable by laymen. We understand the trial

court’s finding to have been that the breed can be

identified by persons who are not qualified to be dog

show judges... .

<r “There was testimony at trial that the term ‘pit

bull’ is the generic term for ‘American Staffordshire

Terrier.’ There was also testimony at trial that there

is no difference between the American Staffordshire

Terrier and the American Pit Bull Terrier.

“In addition, there was testimony that each breed

of dog has a typical physical appearance termed as

‘phenotype,’ and that an unregistered dog can be

identified as being of the breed ‘American Pit Bull

ee ee Oe eens

All

Terrier’ by its physical characteristics, or phenotype.

Several witnesses testified that they could recognize

an American Pit Bull Terrier by its physical charac-

teristics.

“We believe this evidence supports a determina-

tion that the breed American Pit Bull Terrier is a

breed of dog recognized by its physical appearance.

Given our obligation to indulge every presumption in

favor of constitutionelity, we interpret the term

‘known as’ in light of the testimony at trial. Thus,

we interpret the ordinance to include not only dogs

that are registered, but also dogs that are recognizable,

as American Pit Bull Terriers or American Stafford-

shire Terriers.” ........ fee , 767 P.2d at 357-58.

Similarly, in State v. Peters, 534 So. 2d 760 (Fla. Dist.

App. 1988), the court rejected a similar vagueness chal-

lenge to a local ordinance regulating pit bull dog owner-

ship. The Florida court concluded that the ordinance

addressed itself in terms “sufficiently well understood

by pit bull owners to enable them to determine whether

their dogs fall within the proscription of the ordinance.”

The issue of whether a particular animal fell within the

scope of the ordinance was therefore found to be “a matter

of evidence, not constitutional law.” 534 So. 2d at 768.

We agree that whether a particular dog comes within

the purview of the ordinance is a question of fact to

be determined by the evidence. We find, in the present

case, that the decision of the district court is supported

by substantial competent evidence. See Farmers State

Bank of Ingalls v. Conrardy, 215 Kan. 334, Syl. § 1, 524

P.2d 690 (1974).

The plaintiffs next contend that the city ordinance

is unconstitutionally overbroad, and incorrectly treats as

Al2

dangerous animals many dogs fundamentally gentle in

nature. This court discussed the concept of impermissibly

overbroad statutes in State v. Huffman, 228 Kan. at 189:

“While closely related, overbreadth and vague-

ness are distinct concepts. An overbroad statute

makes conduct punishable which under some cir-

cumstances is constitutionally protected from crim-

inal sanctions. A vague statute leaves persons of

common intelligence to guess at its meaning and

whether particular conduct is a crime.”

The overbreadth doctrine serves to protect the rights

of free expression guaranteed by the Constitution.

“The doctrine is predicated on the sensitive nature

of protected expression: ‘persons whose expression

is constitutionally protected may well refrain from

exercising their rights for fear of criminal sanctions

by a statute susceptible of application to protected

expression.’ Village of Schaumburg v. Citizens for

a Better Environment, 444 US. 620, 634 (1980).”

New York v. Ferber, 458 U.S. 747, 768-69, 73 L. Ed.

2d 1113, 102 S. Ct. 3348 (1982).

The United States Supreme Court has ruled that “out-

side the limited First Amendment context, a criminal

statute may not be attacked as overbroad.” Schall v.

Martin, 467 U.S. 253, 268 n.18, 81 L. Ed. 2d 207, 104

S. Ct. 2403 (1984).

In the present case, the plaintiffs’ right to own pit

bull dogs is not guaranteed by the First Amendment.

Because the plaintiffs’ activities do not fall within the

scope of rights guaranteed by the First Amendment, the

city ordinance may not be attacked as constitutionally

overbroad.

Al3

The petition filed by the plaintiffs also contended

that the city ordinance was an improper exercise of the

city’s police power and violated the plaintiffs’ substan-

tive due process rights. This court has discussed the

permissive scope of the police power in a number of

decisions. In City of Colby v. Hurtt, 212 Kan. 113, 117,

509 P.2d 1142 (1973), the court stated:

“«'T]he police power may be exerted as a restraint

upon private rights of persons or to regulate the

use of property, and where appropriate or neces-

sary, prohibit the use of property for certain pur-

poses in aid of the public safety and general welfare,

and constitutional limitations form no impediment

to its exercise where the regulation is reasonable

and bears a fair relationship to the object sought to

be attained.’” (Quoting Martin v. Davis, 187 Kan.

473, 484, 357 P.2d 782 [1960].

Similarly, in State ex rel. Stephan v. Lane, 228 Kan.

379, 614 P.2d 987 (1980), the court discussed the nature

of the police power and the test to be used in deter-

mining whether legislation in furtherance of the police

power unconstitutionally violates substantive due process

guarantees:

“The police power is wide in its scope and gives

the governmental body broad powers to enact laws

to promote the health, morals, security, and welfare

of the people. Broad discretion is vested in the

governing body to determine for itself what is dele-

terious to health, morals, or is inimical to public

welfare. However, the governing body does not

possess plenary power to pass legislation that is arbi-

trary, oppressive, or so capricious that it has no

Al4

reasonable basis. Delight Wholesale Co. v. City of

Prairie Village, 208 Kan. 246, 249-50, 491 P.2d 910

(1971).

“To justify the State’s assertion of its authority

in behalf of the public, it must appear that the in-

terests of the public require such interference; that

the means are reasonably necessary for the accom-

plishment of the purpose, and not unduly oppressive

upon individuals. Debatable questions as to reason-

ableness are not for the courts but for the legisla-

ture. Whether the regulation imposed by the act

is reasonable depends upon such things as the nature

of menace against which it will protect, the mag-

nitude of the curtailment of individual rights af-

fected, and the availability and effectiveness of other

less drastic protective measures. Goldblatt v. Hemp-

stead, 369 U.S. 590, 8 L. Ed. 2d 130, 82 S. Ct. 987

(1962).” 228 Kan. at 392.

In Nicchia v. New York, 254 U.S. 228, 65 L. Ed. 235,

41 S. Ct. 103 (1920), the United States Supreme Court

recognized that local governmental bodies possess broad

powers to regulate the ownership and possession of dogs

within the community. The Court stated that an owner’s

property interest in dogs “is of an imperfect or qualified

nature and they may be subjected to peculiar and drastic

police regulations by the State without depriving their

owners of any federal right.” 254 U.S. at 230. Exer-

cise of the police power for the regulation of dogs within

a community for the purpose of the protection of the

public “does not amount to the taking of one man’s

property and giving it to another nor violate principles

of due process.” Johnston v. Atlanta Humane Society,

173 Ga. App. 416, 417, 326 S.E.2d 585 (1985). The Ken-

Al5

tucky Court of Appeals recognized the “excellent qual-

ities” of dogs’ companionship, loyalty, and heroism in

Shadoan v. Barnett, 217 Ky. 205, 210, 289 S.W. 204 (1926).

Nonetheless, the court concluded:

“(NJjotwithstanding his many virtues, he also has

faults, on account of which the law, as we have seen,

does not accord to him the full measure of protection

extended to other articles of property, leaving his

status and the regulations of his existence to be fixed

by the legislature as it in its wisdom sees proper in

the lawful exercise of its police power. In other

words, because of his sometimes vicious and destruc-

tive qualities he has been regarded and recognized

by the law as only qualified property with the right

in the legislature under the police power to prescribe

regulations for his continued existence by either en-

larging or abridging those recognized by the common

law.” 217 Ky. at 211.

In the present case, the district court found that pit

bull dogs represented a unique hazard to the public

safety, and the city ordinance regulating the ownership

and possession of these dogs was therefore reasonably re-

lated to a legitimate governmental objective. The evi-

dence introduced at trial supports this conclusion. De-

fendant city introduced expert testimony that pit bull

dogs are both more aggressive and destructive than other

dogs. Pit bull dogs possess a strongly developed “kill

instinct” not shared by other breeds of dogs. This testi-

mony indicated that pit bull dogs are unique in their

“savageness and unpredictability.” Research indicates

that pit bull dogs are twice as likely to cause multiple

injuries as other breeds of dogs.

Al6

Moreover, the injuries inflicted by pit bull dogs are

far worse that those inflicted by other breeds. One wit-

ness, testifying as an expert on trauma injuries, testified

that pit bull dog attacks inflicted injuries much more

horrific than those in other dog attacks and were com-

parable, in his experience, only to those injuries inflicted

in attacks by lions. The district court was also presented

with a survey of 278 dog attacks indicating that a majority

(54.1%) represented attacks by pit bull dogs. Of the 32

known human deaths in the United States due to dog

attacks since July 1983, 23 were caused by attacks by pit

bull dogs.

The district court correctly upheld the city ordinance

as a valid exercise of the community’s police power. The

ordinance does not impermissibly infringe upon the sub-

stantive due process rights of the plaintiffs. The unique

public health hazard created by the presence of pit bulls

within the community justifies the city’s attempt to reg-

ulate this breed of dog.

Noting the “inherent characteristics of aggression,

strength, and unpredictability” of pit bull dogs, the New

Mexico Court of Appeals reached a similar conclusion in

Garcia v. Village of Tijeras, ........ Sf oe , 767 P.2d

at 360. The Florida District Court of Appeal also agreed

in State v. Peters, 534 So. 2d 760. The Florida court found

that a local regulation requiring the purchase of a sub-

stantial amount of insurance by pit bull dog owners did

not violate the owners’ due process rights. Noting the

“extensive power exercised by government to regulate

animals,” the court concluded that the insurance require-

ment was constitutionally permissible. 534 So. 2d at 765.

Since the government possesses such broad powers to reg-

ulate animals for the public welfare, and “it is likely that

Al7

a governmental authority cculd ban pit bulls outright

without offending the due process rights of the dog owner,

a fortiori, less stringent regulations such as [the insurance

requirement] would not so offend.” 534 So. 2d at 765.

The plaintiffs next contend that the ordinance im-

properly infringes upon their right to the equal protection

of the laws. They argue that the ordinance improperly

singles out one breed of dog for regulation, a distinction

they allege to be without a rational relationship to a legit-

imate governmental purpose.

The equal protection clause

“ ‘is offended only if the classification rests on grounds

whe’ly irrelevant to the achievement of the State’s

objective. State legislatures are presumed to have

acted within their constitutional power despite the

fact that, in practice, their laws result in some in-

equality. A statutory discrimination will not be set

aside if any state of facts reasonably may be conceived

to justify it.’” State ex rel. Schneider v. Liggett, 223

Kan. 610, 616, 576 P.2d 221 (1978) (quoting McGowan

v. Maryland, 366 U.S. 420, 425-26, 6 L. Ed. 2d 393, 81

S. Ct. 1101 [1961]).

As long as it does not infringe upon recognized funda-

mental interests, or involve a suspect classification, legis-

lation must be upheld against an equal protection chal-

lenge so long as it possesses some reasonable basis. See

State ex rel. Schneider v. Liggett, 223 Kan. at 616-17.

“In social and economic legislation, a statutory clas-

sification does not violate the equal protection clause

merely because its classifications are imperfect. [Cita-

tions omitted.] Nor does the equal protection clause

require a state ‘to choose between attacking every

Als

aspect of a problem or not attacking the problem at

all.’ [Citations omitted.}] The foregoing principle

was well stated in West Coast Hotel Co. v. Parrish,

300 U.S. 379, 81 L. Ed. 703, 57 S. Ct. 578:

“« |. This Court has frequently held that the

legislative authority, acting within its proper field,

is not bound to extend its regulation to all cases which

it might possibly reach. The legislature “is free to

recognize degrees of harm and it may confine its re-

strictions to those classes of cases where the need is

deemed to be clearest.” If “the law presumably hits —

the evil where it is most felt, it is not to be over-

thrown because there are other instances to which it

might have been applied.” There is no “doctrinaire

requirement” that the legislation should be couched

in all embracing terms... . (p. 400.)” Brown v.

Wichita State University, 219 Kan. 2, 13, 547 P.2d

1015 (1976).

The United States Supreme Court discussed the con-

stitutional power of legislatures to limit or regulate the

ownership of dogs in Sentell v. New Orleans & c. Rail-

road Co., 166 U.S. 698, 41 L. Ed. 1169, 17 S. Ct. 693 (1897).

The Court stated:

“While the higher breeds rank among the noblest

representatives of the animal kingdom, and are justly

esteemed for their intelligence, sagacity, fidelity,

watchfulness, affection, and, above all, for their

natural companionship with man, others are afflicted

with such serious infirmities of temper as to be little

better than a public nuisance... .

“[T]hey have, from time immemorial, been con-

sidered as holding their lives at the will of the legis-

Alg

lature, and properly falling within the police powers

of the several States.” 166 U.S. at 701-02.

This court recognized the ability of the legislature

to discriminate among types of dogs in State, ex rel.,

v. City of Topeka, 36 Kan. 76, 84, 12 Pac. 310 (1886):

“Under the almost unbroken current of authority

we think that statutes and ordinances may be passed

regulating, restricting, or even prohibiting the run-

ning at large of dogs in cities, and .. . that dogs

in cities may be classified, and the owners, keepers

or harborers thereof may be required to register all

the dogs of one class and not the dogs of another

class, and to pay a greater registration fee for the

registration of the dogs of one class than for the

registration of the dogs of another class; and .. .

all this is constitutional and valid, and is ‘due pro-

cess of law’; and that by the same no one is denied

‘the equal protection of the laws.’”

The equal protection rights of pit bull dog owners

have been discussed by other courts. In Garcia v. Vil-

lage of Tijeras, the New Mexico Court of Appeals re-

jected an equal protection challenge to an ordinance ban-

ning pit bulls. The court stated:

“(W]e find that the Village’s classification, whereby

owners of American Pit Bull Terriers are treated

differently than owners of other breeds of dog, is

not violative of either due process or equal protec-

tion. Where the challenged ordinance does not tram-

mel fundamental rights or involve a suspect classi-

fication, the court presumes the constitutionality of

the discriminatory classification. .. .

A20

“(T]here is substantial evidence of record that

American Pit Bull Terriers presented a special threat

to the safety of the residents of the Village over

and above that presented by other breeds of dog. A

legislature or municipal governing body is entitled to

address threats in a piecemeal fashion, countering

each threat as it arises. [Citation omitted.] To sat-

isfy equa] protection tenets, it is not necessary that

the Village address all potential threats from all

breeds of dog; instead, the Village was entitled to

address a phase of the problem that was of acute

coneerm.” ....... = aoe , 767 P.2d at 360-61.

The United States District Court for the Eastern

District of Pennsylvania also_rejected an equa! protec-

tion challenge to an ordinance regulating the keeping

of pit bulls in Starkey v. Chester Tp., 628 F. Supp. 196

(E.D. Pa. 1986). The court stated:

“The Township could reasonably determine, as it

did, that Pit Bulls are dangerous. The Township’s

Health Officer testified that the regulation was nec-

essary in this densely populated Township; the Pit

Bull bites to kill without signal. The Township does

not have to regulate every dangerous animal at the

same time in the same way to pass constitutional

muster.” 628 F. Supp. at 197.

State v. Peters, 534 So. 2d 1760, also involved an

equal protection challenge to an ordinance regulating the

ownership of pit bull dogs. The court found that the

local government “had no obligation to regulate all dogs

when it regulated some dogs,” 534 So. 2d at 764, since

the government was not required to regulate all dogs

at once. The court, quoting Williamson v. Lee Optical

A2l1

Co., 348 U.S. 483, 489, 99 L. Ed. 2d 963, 75 S. Ct. 461

(1955), stated:

“The problem of legislative classification is a per-

ennial one, admitting of no doctrinaire definition.

Evils in the same field may be of different dimen-

sions and proportions, requiring different remedies.

Or so the legislature may think. Or the reform may

take one step at a time addressing itself to the phase

of the problem which seems most acute to the legis-

lative mind. The legislature may select one phase

of one field and apply a remedy there, neglecting

the others.’” 534 So. 2d at 763.

The local government was not required to regulate all

potentially dangerous dogs. The sole issue, therefore,

was whether there was a rational basis for regulating

pit bull dogs. The Peters court found that there was,

noting the “ample evidence” to support the city’s con-

clusion that pit bull dogs required regulation. 534 So.

2d at 764.

In another context, the Washington Supreme Court

has also noted that a legislature may make valid dis-

criminations between breeds in its regulation of dogs.

In McQueen v. Kittitas County, 115 Wash. 672, 198 Pac.

394 (1921), the court stated:

“(S]ince dogs are a subject of the police power, we

see no reason why the legislature may not make dis-

tinctions between breeds, sizes, and the localities in

which they are kept. The object of the statute is pro-

tection. The purpose is to prevent injuries to persons

and property by dogs. Any distinction, founded upon

reason at least, is therefore valid ....” (Emphasis

added.) 115 Wash. at 678.

A22

As discussed above, pit bull dogs represent a unique

public health hazard not presented by other breeds or

mixes of dogs. Pit bull dogs possess both the capacity for

extraordinarily savage behavior and physical capabilities

in excess of those possessed by many other breeds of dogs.

Moreover, this capacity for uniquely vicious attacks is

coupled with an unpredictable nature. The trial court

correctly concluded that the city ordinance did not violate

the plaintiffs’ equal protection rights.

The final issue raised by plaintiffs is whether the dis-

trict court erred in dismissing the plaintiffs’ claim pur-

suant to 42 U.S.C. § 1983 (1982). Since the district court

correctly concluded that the plaintiffs had not demon-

strated that the city ordinance violated their constitutional

rights, it did not err in dismissing their § 1983 claim for

damages.

The judgment of the district court is affirmed.

A23

APPENDIX II

ORDINANCE NO. DAC-1442

AN ORDINANCE REGULATING ANIMALS IN THE

CITY OF OVERLAND PARK, KANSAS; AMENDING

AND REPEALING EXISTING OVERLAND PARK MU-

NICIPAL CODE SECTIONS 6.10.010 6.10.030 AND 6.10.-

180; PROVIDING SUBSTITUTE PROVISIONS THERE-

FOR; PROVIDING FOR THE REGULATION OF DAN-

GEROUS ANIMALS TO INCLUDE PIT BULL DOGS

WITHIN THE CORPORATION LIMITS OF THE CITY

OF OVERLAND PARK, KANSAS; REPEALING CITY

OF OVERLAND PARK ORDINANCE NO. DAC-1426,

THE SAME BEING CODIFIED.

WHEREAS, the Governing Body of the City of Over-

land Park has determined that the keeping of “pit bull

dogs” within the corporate City limits poses an immediate

threat to the health, safety and welfare of the citizen of

Overland Park.

NOW, THEREFORE, BE IT ORDAINED BY THE GOV-

ERNING BODY OF THE CITY OF OVERLAND PARK.

SECTION i. Overland Park Municipal Code Section

6.10.010 is hereby amended to read as follows:

6.10.010 Definitions

(a) For the purposes of this chapter “dangerous animal”

means and includes 1) any mammal, amphibian, reptile

or fowl which is of a species which, due to size, vicious

nature or other characteristics would constitute a danger

to human life, physical well-being, or property, including

but not limited to, lions, tigers, leopards, panthers, bears,

wolves, apes, gorillas, monkeys of a species whose average

adult weight is 20 pounds or more, foxes, elephants, alli-

A24

gators, crocodiles, and snakes which are poisonous or other-

wise present a risk of serious physical harm or death to

human beings as a result of their nature or physical make-

up, including all constrictors.

2) Any dog or cat having a disposition or propensity to

attack or bite any person or animal without provocation

is hereby defined as a “dangerous animal.” For the pur-

poses of this chapter, where the official records of the

Chief Animal Control Officer or City Clerk indicate a dog

or cat has bitten any person or persons or animal on two

or more separate occasions, it shall be prima facie evidence

that said dog or cat is a dangerous animal.

3) Any pit bull dog. “Pit bull dog” is defined to mean

any and all of the following dogs:

(a) The Staffordshire Bull Terrier breed of dogs;

(b) The American Staffordshire Terrier breed of

dogs;

(d) The Pit Bull Terrier breed of dogs;

(e) Dogs of mixed breeds or of other breeds than

above listed which breeds or mixed breeds are known

as pit bulls, pit bull dogs, or pit bull terriers;

(f{) Dogs which have the appearance and charac-

teristics of being predominately of the breeds of

dogs known as Staffordshire Bull Terrier, American

Pit Bull Terrier, American Staffordshire Terrier, Pit

Bull Terrier and any other breed of dog commonly

known as pit bulls, pit bull dogs, or pit bull terriers,

or a combination of those breeds.

The registration of a dog at any time as a pit bull

or any of the dogs listed above shall constitute prima

A25

facie evidence the animal is prohibited by this sec-

tion.

(b) “Person” includes any natural person, association,

partnership, organization or corporation.

SECTION 2. Overland Park Municipal Code Section

6.10.030 is hereby amended to read as follows:

6.10.030 Exceptions; Permit and registration requirements.

Any person or organization which falls into one of the

following subsections shall be permitted to own, harbor

or have charge, custody, control, or possession of any

animal described in 6.10.010 hereof, provided he/she has

first secured a permit under 6.10.070; provided further

that owners, keepers or harborers of “pit bull dogs” shall

also be required to register their animals in accordance

with the provisions of this ordinance and Chapter 6 of

the Overland Park Municipal Code:

(a) The keeping of such animals in zoos, bona fide

educational or medical institutions, museums or any

other place where they are kept as live specimens for

the public to view, or for the purpose of instruction or

study.

(b) The keeping of such animals for exhibition to the

public of such animals by a circus, carnival or other

exhibit or show.

veterinary hospital for treatment.

(d) Commercial establishments possessing such animals

for the purpose of sale or display.

(e) The keeping of a registered pit bull as defined in

6.10.010 herein. The keeping of such dogs, however, shall

be subject to the following mandatory requirements:

A26

(1) Leash and Muzzle. No person shall permit a

registered pit bull dog to go outside its kennel or pen

unless such dog is securely leashed with a leash no

longer than four (4) feet in length. No person shall

permit a pit bull dog to be kept on a chain, rope or

other type of leash outside its kennel or pen unless a

person is in physical control of the leash. Such dogs

may not be leashed to inanimate objects such as trees,

posts, buildings, etc. In addition, all pit bull dogs on

a leash outside the animals kennel must be muzzled by

a muzzling device sufficient to prevent such dog from

biting persons or other animals.

(2) Confinement. All registered pit bull dogs shall

be securely confined indoors or in a securely enclosed

and locked pen or kennel, except when leashed and

muzzled as above provided. Such pen, kennel or struc-

ture must have secure sides and a secure top attached

to the sides. All structures used to confine registered

pit bull dogs must be locked with a key or combination

lock when such animals are within the structure. Such

structure must have a secure bottom or floor attached

to the sides of the pen or the sides of the pen must be

embedded in the ground no less than two (2) feet. All

structures erected to house pit bull dogs must comply

with all zoning and building regulations of the City.

All such structures musf be adequately lighted and ven-

tilated and kept in a clean and sanitary conditions.

(3) Confinement Indoors. No pit bull dog may be

kept on a porch, patio or in any part of a house or

structure that would allow the dog to exit such building

on its own volition. In addition, no such animal may

be kept in a house or structure when the windows are

open or when screen windows or screen doors are the

A27

only obstacle preventing the dog from exiting the struc-

ture.

(4) Signs. Ail owners, keepers or harborers of reg-

istered pit bull dogs within the City shall within ten

(10) days of the effective date of this ordinance display

in a prominent place on their premises a sign easily

readible by the public using the words “Beware of Dog.”

In addition, a similar sign s requred to be posted on

the kennel or pen of such animal.

(5) Insurance. All owners, keepers or harborers

of registered pit bull dogs must within ten (10) days

of the effective date of this ordinance provide proof to

the City Clerk of public liability insurance in a single

incident amount of $50,000.00 for bodily injury to or

death of any person or persons or for damage to prop-

erty owned by any persons which may result from the

ownership, keeping or maintenance of such animal. At

the time of initial registration the owner, keeper or

harborer must present proof to the City Clerk of the

required insurance. At the time of subsequent registra-

tion the owner, keeper or harborer must show proof

of insurance for the present registration period and proof

that there was insurance coverage throughout the period

of the prior registration year. In the event said liability

insurance is cancelled, lapsed, or for any other reason

becomes non-enforceable, said owner, keeper, or harborer

shall be in violation of the provisions of this ordinance

and subject to the penalties provided herein.

(6) Identification Photographs. All owners, keepers

or harborers of registered pit bull dogs must within ten

(10) days of the effective date of this ordinance pro-

vide to the City Clerk two color photographs of the

registered animal clearly showing the color and approx-

imate size of the animal.

A28

(7) Reporting Requirements. All owners, keepers

or harborers of registered pit bull dogs must within ten

(10) days of the incident, report the following informa-

tion in writing to the City Clerk as required herein-

after:

(a) The removal from the City or death of a reg-

istered pit bull dog;

(b) The birth of offspring of a registered pit bull

dog;

owner should the owner move.

(8) Animals Born of Registered Dogs. All offspring

born of pit bull dogs registered with the City must be

registered with the City within six (6) weeks of the

birth of such animal.

(9) Failure to Comply. It shall be unlawful for the

owner, keeper or harborer of a pit bull dog registered with

the City Clerk to fail to comply with the requirements

and conditions set forth in this ordinance. Any dog found

to be the subject of a violation of this ordinance shall be

subject to immediate seizure and impoundment. In addi-

tion, failure to comply will result in the revocation of the

license of such animal and the permit providing for the

keeping of such animal resulting in the immediate removal

of the animal from the City.

SECTION 3. Overland Park Municipal Code Section 6.-

10.180 is hereby amended to read as follows:

6.10.180 Violations and Penalties.

Any person violating or permitting the violation of

any provision of this ordinance shall upon conviction in

A29

the Municipal Court be fined a sum not less than $200

and not more than $1,000. In addition to the fine im-

posed, the Court may sentence the defendant to imprison-

ment in the county jail for a period not to exceed 30

days. In addition, the Court shall order the registration

of and permit for the subject pit bull revoked and the

dog removed from the City. Should the defendant refuse

to remove the dog from the City, the municipal court

judge shall find the defendant owner in contempt and

order the immediate confiscation and impoundment of the

animal. Each day that a violation of this ordinance con-

tinues shall be deemed a separate offense. In addition

to the foregoing penalties, any person who violates this

ordinance shall pay all expenses, including shelter, food,

handling, veterinary care and testimony necessitated by

the enforcement of this ordinance.

SECTION 4. Existing Overland Park Municipal Code Sec-

tions 6.10.010, 6.10.030, 6.10.180 and City of Overland Park

Ordinance No. DAC-1426 are hereby repealed.

SECTION 5. This ordinance shall take effect and be in

force from and after its publication in the Overland Park

Sun, an official City newspaper.

PASSED by the City Council this 21st day of September,

1987.

APPROVED by the Mayor this 2lst day of September,

1987.

(s) Ed Eilert

Ed Eilert, Mayor

A30

ATTEST:

(s) Bernice Crummett

Bernice Crummett

Finance Director/City Clerk

APPROVED AS TO FORM:

(s) Michael R. Santos

Michael R. Santos

Assistant City Attorney

;

]

A31

ORDINANCE NO. DAC-1494

AN ORDINANCE RELATING TO DANGEROUS AN-

IMALS IN THE CITY OF OVERLAND PARK, KANSAS;

AMENDING AND REPEALING EXISTING OVERLAND

PARK MUNICIPAL CODE SECTION 6.10.010; PROVID-

ING SUBSTITUTE PROVISIONS THEREFOR.

BE IT ORDAINED BY THE GOVERNING BODY OF

THE CITY OF OVERLAND PARK, KANSAS:

SECTION 1. Overland Park Municipal Code Section 6.-

10.010 is hereby amended to read as follows:

6.10.010 Definitions

(a) For the purposes of this chapter “dangerous animal”

means and includes 1) any mammal, amphibian, reptile

or fowl which is of a species which, due to size, vicious

nature or other characteristics would constitute a danger

to human life, physical well-being, or property, including

but not limited to, lions, tigers, leopards, panthers, bears,

wolves, apes, gorillas, monkeys of a species whose average

adult weight is 20 pounds or more, foxes, elephants, aili-

gators, crocodiles, and snakes which are poisonous or

otherwise present a risk of serious physical harm or death

to human beings as a result of their nature or physical

makeup, including all constrictors.

2) Any dog or cat having a disposition or propensity to

attack or bite any person or animal without provocation

is hereby defined as a “dangerous animal.” For the pur-

poses of this chapter, where the official records of the

Chief Animal Control Officer or City Clerk indicate a dog

or cat has bitten any person or persons or animal on two

or more separate occasions, it shall be prima facie evidence

that said dog or cat is a dangerous animal.

A32

3) Any pit bull dog. “Pit bull dog” is defined to mean

any and all of the following dogs:

(a) The Staffordshire Bull Terrier breed of dogs;

(b) The American Staffordshire Terrier breed of dogs;

(d) Dogs which have the appearance and character-

istics of being predominately of the breeds of dogs

known as Staffordshire Bull Terrier, American Pit

Bull Terrier, or American Staffordshire Terrier.

The registration of a dog at any time as a pit bull

or any of the dogs listed above shall constitute prima

facie evidence the animal is prohibited by this sec-

tion.

Sa eS a

(b) “Person” includes any natural person, association,

partnership, organization or corporation.

SECTION 2. Existing Overland Park Municipal Code

Section 6.10.010 is hereby repealed.

SECTION 3. This ordinance shall take effect and be

in force from and after its publication in the Overland

Park Sun, an official City newspaper.

PASSED by the City Council this day 7th day of De-

cember, 1987.

APPROVED by the Mayor this 7th day of December, :

1987.

—-=-

(s) Ed Eilert

Ed Eilert, Mayor

A33

ATTEST:

(s) Bernice Crummett

Bernice Crummett

Finance Director/City Clerk

APPROVED AS TO FORM:

(s) Michael R. Santos

Michael R. Santos

Assistant City Attorney

A34

APPENDIX III

Identification of “Pit. Bull Dogs” Pursuant to O.P.M.C.

6.10.020

The following procedures and standards shall be used

by all animal control officers and patrol division officers

in determining whether a particular animal is subject

_to the requirements of O.P.M.C. 6.10.020.

1. All officers will initially determine why the ani-

mal is being considered for possible inclusion within the

requirements of O.P.M.C. 6.10.020. Factors to be con-

sidered include, but are not limited to the following or

a combination of the following:

a. Registration of the animal as a pit bull dog as

defined by O.P.M.C. 6.10.010.

b. Identification of the animal as a pit bull dog by

the owner, keeper, or harborer of the dog.

c. Positive identification of the animal as a pit bull

dog by an officer of the department pursuant to

the procedures set forth in this S.O.P.

d. Identification by a lay witness who has personal

knowledge that the dog is a pit bull. (Examples:

Owner has referred to dog as pit bull in witness’s

presence).

e. Positive identification of dog as pit bull by li-

censed veterinarian.

2. Positive identification of an animal as a pit bull

by an officer shall include any or all of the following:

a. Verification of inclusion by comparison of the

physical characteristics of the subject dog with

identification photos and physiological diagrams.

hiantiins, sa heme at aT tate ths Cilia be

ee eae pee ee

A35

b. Personal and professional experience of the offi-

. cer in having observed pit bull dogs in the past.

c. Identification of animal as a pit bull by owner,

keeper, or harborer.

3. If an owner, keeper, or harborer of an animal

denies it is subject to the ordinance, an officer shall not

consider the animal within the parameters of O.P.M.C.

6.10.020 unless the following conditions are met.

a. The officer believes the animal is a pit bull after

_ comparing the physical characteristics of the an-

imal with the identification material set forth

herein.

b. The officer identification of the animal as a pit

bull is verified by an animal control officer or

if an animal control officer is not available, by

another department officer after comparing the

animal to identification materials, provided that

any animal identified as a pit bull by a depart-

ment officer whose owner, keeper, or harborer

continues to deny the animal’s identification as-

a pit bull shall be afforded the immediate oppor-

tunity to be brought before a licensed veterinar-

ian for identification purposes. The officer shall

accept the breed identification of the veterinarian.

4. O.P.M.C. 6.10.010 requires that all animals, sub-

ject to the ordinance be at a minimum predominately

pit bull. Predominately in this context shall mean that

the officer has knowledge through identification proce-

dures, admission by owner, keeper, or harborer, or other-

wise that the animal is more than fifty percent pit bull.

Predominately shall further mean that the animal ex-

hibits the physical characteristics of a pit bull more than

A36

that of any other breed of dog. If an officer cannot

determine the predominate breed of the animal in ques-

tion as pit bull, the animal shall not be subject to the

provisions of O.P.M.C. 6.10.020 unless the animal is later

positively identified as a pit bull by a licensed veteri-

narian. iy

5. All officers shall accept the written or oral iden-

tification of an animal by a licensed veterinarian unless

the officer has reason to question the credentials of the

individual rendering the statement. In such cases the

matter shall be referred to the Chief Animal Control

Officer or the watch commander for further investi-

gation.

6. All animal control officers shall be familiar with

and consult the attached breed identification materials.

In addition, ali animal control officers shall personally

review the registration and identification photos of pit

bulls presently registered with the City of Overland Park.

APPROVED BY:

/s/ Myron E. Scafe

Myron E. Scafe

Chief of Police

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.