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Published: Thursday, 5/24/2012

Toledoan goes to court to get his 4 dogs back

Man says seizure violated rights

BY TANYA IRWIN
BLADE STAFF WRITER

A Toledo man whose dogs were seized by the Lucas County dog warden said his due-process rights were violated and is asking the judge to order their return.

Hugh Smith's attorney, Daniel Haude of Cleveland, has filed a motion asking for return of the seized and impounded dogs: two Cane Corsos and two mastiff mixes. The city has until June 4 to file a response brief. A hearing is scheduled for June 11 in Toledo Municipal Court before Judge Michael Goulding.

The dogs, which were seized April 25, will be held until further notice from the court, according to the warden's impounding record.

Mr. Smith, 1340 Palmetto Ave., was cited Jan. 12 by Deputy Dog Warden Ann Connolly for failing to immunize against rabies both the male and female Cane Corsos. He was also cited for failing to confine or restrain the dogs on premises to prevent escape. The dogs were discovered at 1345 Thatcher Dr., around the corner from his house, according to the citation.

Judge Goulding issued an order April 12 authorizing the dog warden to seize and confine the dogs pending trial, which was originally set for May 14 but was rescheduled because additional charges were filed, including two counts of failing to register a dog or kennel, four counts pertaining to the duties and responsibility of dog owners permitting any dog to be running at large, and two counts pertaining to the duties and responsibilities of dog owners permitting any dog to trespass upon the property of another.

Mr. Smith was arraigned Wednesday on the additional charges and pleaded not guilty.

Mr. Haude said Mr. Smith did not receive any notice of any request to seize the dogs.

"At the time of the seizure, the [dog warden] did not have the seizure order or any paperwork to show the defendant indicating that any type of seizure order had been issued or the basis of the seizure order," Mr. Haude wrote in the memorandum in support of his motion. "No hearing was scheduled prior to the seizure of his dogs, nor was the defendant given notice or any opportunity to present evidence prior to the seizure of his dogs."

The court also lacks statutory authority to order the seizure of the dogs, even if Mr. Smith were convicted of the charges against him, Mr. Haude said.

Mr. Smith's dogs have not been taken out of their kennels since their seizure, Mr. Haude said.

Lucas County Dog Warden Julie Lyle said she did not know whether that is true because the pound does not keep logs of which dogs are walked and when.

"We do try to take out as many dogs for walks as we can every day," Ms. Lyle said. "But the dogs have to be safe to handle, and I believe several of Mr. Smith's dogs have shown signs of aggression."

Mr. Smith's history with the city and dog warden dates back two years when his challenge to the city's dog ordinance resulted in the repeal of breed-specific rules.

Mr. Smith was charged with 13 violations of the city's dog laws in October, 2010.

That month, the dog warden's office seized what it deemed to be three "pit bull"-type dogs from Mr. Smith's home after one of them was involved in a fight with another dog as Mr. Smith was taking his three for a walk.

The warden initially refused to give back Mr. Smith's dogs and cited him for having unmuzzled, uninsured, and improperly confined "pit bulls" as well as two too many "pit bulls." Mr. Smith's attorneys claimed his dogs were in fact Cane Corsos -- not "pit bulls" -- and argued that the city's vicious dog ordinance was unconstitutional anyway.

Judge Goulding in January, 2011, dismissed 10 of the charges against Mr. Smith, asserting that the city's muzzle requirement and one-only limit for "pit bulls" were unconstitutional as they conflicted with home-rule doctrine.

The city subsequently revised the laws to take out breed-specific initiatives and instead focused the rules on behavior.

Contact Tanya Irwin at: tirwin@theblade.com or 419-724-6066.



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