BROOKSVILLE, KENTUCKY, USA – Two Pit Bull Terrier owners in Bracken County have filed a petition in circuit court seeking a temporary injunction on an ordinance passed by the local fiscal court recently that bans the ownership of the breed, writes Nick Mays.
In the filing of the injunction on behalf of Michael Bess and Timothy Poe, attorney Linda M. Keeton argues the ban is unconstitutional in that it identifies a specific breed.
Such a law violates both the Kentucky and United States constitutions, Radcliff said.
The ordinance violates the rights of the breed's owners to own property, Radcliff said, constituting a violation of Kentucky Bill of Rights sections 1 and 2 and Amendments 5, 8 and 14 of the U.S. Constitution.
Because the law allows the county to order the dogs destroyed, Radcliff argues it violates due process guaranteed under Amendments 5 and 14, by penalising the owners of the breed and violates their 'right to travel interstate.'
'The right to travel interstate is a fundamental constitutional right that requires the application of the compelling interest test to justify governmental interference,' she wrote in the filing.
Incredibly, the ordinance blatantly undermines basic human rights, as it 'prevents individuals who own pit bull terriers from moving to Bracken County and forces those currently living in Bracken County to move out of the area or surrender their property to the county government,' according to the petition.
Defining the breed as a 'public nuisance' without requiring proof the dog is dangerous is also unfair, the filing said. The petition continues, citing some spurious grounds I the ordnance relating to identification of allegedly ‘dangerous’ breeds: 'The definition of public nuisance does not indicate a specific breed, but rather a specific activity by an individual animal. Section 53.91 lists the ownership, location, maintenance, keeping, harbouring, or use of pit bull terriers as a public nuisance indicating that the owner of a docile pit bull would be guilty of creating a public nuisance for the simple fact that the dog is or looks like a Pit Bull Terrier.
‘Said ordinance is vague (unconstitutional) in that if a dog looks like an American Staffordshire Terrier, a Staffordshire Bull Terrier, or an American Pit Bull Terrier, according to the sample photograph, in the 15th Edition of the’ Complete Dog Book’ published in 1977, the animal is deemed to be one of the above breeds with the owner being in violation of the ordinance. (The) ordinance is over broad in that the conduct which is constitutionally permissible, owning a dog, is prohibited.'
The petition asks that the court issue an 'immediate injunction to stop enforcement (of the ordinance),' strike it down, grant a full evidentiary hearing to challenge the constitutionality and a trial by jury.
Bracken County Attorney Ed Rudd said the questions asked through the petition will require a great deal of research and that he will seek assistance from local government.
'We will be dealing with this the rest of this term and probably on into the next,' Rudd said.
Though the question is fairly simple, Rudd said, the numerous citings of the Kentucky and U.S. constitutions must be thoroughly researched. No matter what the ruling, Rudd said he expects an appeal of the decision.
'There's nothing to it. It's either unconstitutional or it isn't ... I'm pretty sure both sides will file appeals if they receive an adverse decision,’ he added.
The petition was filed October. 23rd, giving Rudd said 20 working days to respond.