2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

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1 City of Pagedale, Missouri v Murphy, 142 S.W.3d 775 (E.D. Mo Ct App, 2004) Page 1 Courts Missouri Court of Appeals, Eastern District. CITY OF PAGEDALE, Respondent, v. Sean MURPHY, Appellant. No. ED June 15, Motion for Rehearing and/or Transfer to Supreme Court Denied July 29, Application for Transfer Denied Sept. 28, Background: After defendant and city entered into joint stipulation of facts, the Circuit Court, St. Louis County, Sandra Farragut-Hemphill, J., found defendant guilty of possessing a pit bull in violation of city ordinance and sentenced defendant to pay a fine. Defendant appealed. Holdings: The Court of Appeals, Booker T. Shaw, J., held that: (1) it had jurisdiction to address constitutionality of ordinance; (2) failure of ordinance to provide definition for term pit bull did not render ordinance unconstitutionally vague; and (3) possession of American Staffordshire Terrier violated ordinance. Affirmed. West Headnotes [1] Courts (17) 106 Courts 106VI Courts of Appellate Jurisdiction 106VI(B) Courts of Particular States 106k231 Missouri 106k231(6) Appellate Jurisdiction of Cases Involving Constitutional Questions 106k231(17) k. City Charters and Ordinances. Most Cited Cases 106 Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(A) Courts of Same State 106VII(A)1 In General 106k472 Exclusive or Concurrent Jurisdiction 106k472.2 k. Appellate or Supreme Courts. Most Cited Cases In reviewing judgment finding defendant guilty of violating city ordinance prohibiting possession of pit bulls, Court of Appeals had jurisdiction to address constitutionality of ordinance; claims challenging constitutionality of municipal ordinances were not within Supreme Court's exclusive appellate jurisdiction. [2] Courts Courts 106VII Concurrent and Conflicting Jurisdiction 106VII(A) Courts of Same State 106VII(A)1 In General 106k472 Exclusive or Concurrent Jurisdiction 106k472.2 k. Appellate or Supreme Courts. Most Cited Cases While the Supreme Court generally has exclusive jurisdiction over cases dealing with the validity of a Missouri statute or constitutional provision, claims that municipal ordinances are constitutionally invalid are not within the exclusive appellate jurisdiction of the Supreme Court. [3] Appeal and Error (1) 30 Appeal and Error 30XVI Review 30XVI(A) Scope, Standards, and Extent, in General 30k844 Review Dependent on Mode of Trial in Lower Court 30k846 Trial by Court in General 30k846(1) k. In General. Most Cited Cases 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

2 City of Pagedale, Missouri v Murphy, 142 S.W.3d 775 (E.D. Mo Ct App, 2004) Page 2 Appeal and Error (8.1) 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)3 Findings of Court 30k1010 Sufficiency of Evidence in Support 30k In General 30k1010.1(8) Particular Cases and Questions 30k1010.1(8.1) k. In General. Most Cited Cases Appeal and Error (7.1) 30 Appeal and Error 30XVI Review 30XVI(I) Questions of Fact, Verdicts, and Findings 30XVI(I)3 Findings of Court 30k1012 Against Weight of Evidence 30k In General 30k1012.1(7) Particular Cases and Issues 30k1012.1(7.1) k. In General. Most Cited Cases Court of Appeals would affirm trial court's judgment that found that defendant violated city ordinance prohibiting possession of pit bulls and that imposed a fine unless there was no substantial evidence to support it, it was against the weight of the evidence, or it erroneously declared or applied the law. [4] Constitutional Law (1) 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)2 Nature and Elements of Crime 92k4502 Creation and Definition of Offense 92k4509 Particular Offenses 92k4509(1) k. In General. Most Cited Cases (Formerly 92k258(3.1)) Municipal Corporations X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k604 k. Keeping and Use of Animals. Most Cited Cases Failure of city ordinance prohibiting possession of pit bulls to provide definition for term pit bull did not render ordinance unconstitutionally vague; pit bulls had distinctive physical and behavioral characteristics, and general knowledge and information available to ordinary dog owners would have made it apparent to an owner whether possession of his dog would violate ordinance. U.S.C.A. Const.Amend. 14; V.A.M.S. Const. Art. 1, 10. [5] Municipal Corporations (2) 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k594 Ordinances and Regulations in General 268k594(2) k. Form and Sufficiency in General. Most Cited Cases Municipal ordinance will not be declared void for uncertainty if it is susceptible to any reasonable construction that will sustain it. [6] Municipal Corporations (2) 268IV Proceedings of Council or Other Governing Body 268IV(B) Ordinances and By-Laws in General 268k122.1 Evidence 268k122.1(2) k. Presumptions and Burden of Proof. Most Cited Cases There is a presumption that ordinances enacted pursuant to a municipality's police powers are reasonable. [7] Municipal Corporations (2) 268IV Proceedings of Council or Other Governing Body 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

3 City of Pagedale, Missouri v Murphy, 142 S.W.3d 775 (E.D. Mo Ct App, 2004) Page 3 268IV(B) Ordinances and By-Laws in General 268k122.1 Evidence 268k122.1(2) k. Presumptions and Burden of Proof. Most Cited Cases There is a presumption that local government ordinances are constitutional. [8] Municipal Corporations (2) 268X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k594 Ordinances and Regulations in General 268k594(2) k. Form and Sufficiency in General. Most Cited Cases Municipal ordinance is void for vagueness when it uses terms so vague that a person of common intelligence must guess at its meaning and would differ as to its application. U.S.C.A. Const.Amend. 14; V.A.M.S. Const. Art. 1, 10. [9] Constitutional Law Constitutional Law 92XXVII Due Process 92XXVII(B) Protections Provided and Deprivations Prohibited in General 92k3905 k. Certainty and Definiteness; Vagueness. Most Cited Cases (Formerly 92k251.4) Vagueness doctrine, under which an ordinance may be found unconstitutional, is premised upon the due process requirements in the federal and state constitutions. U.S.C.A. Const.Amend. 14; V.A.M.S. Const. Art. 1, 10. [10] Municipal Corporations X Police Power and Regulations 268X(A) Delegation, Extent, and Exercise of Power 268k604 k. Keeping and Use of Animals. Most Cited Cases Defendant's possession of American Staffordshire Terrier violated city ordinance prohibiting possession of pit bulls, although the only breed that could be called a Pit Bull was purportedly the American Pit Bull Terrier; ordinance did not capitalize pit bull, and term pit bull was used to describe breeds similar to American Pit Bull Terriers. *777 Paul J. D'Agrosa, St. Louis, MO, for appellant. Gregory K. Allsberry, Troy, MO, for respondent. BOOKER T. SHAW, Judge. Sean Murphy ( Murphy ) appeals from the trial court's judgment finding him guilty of possessing a pit bull in violation of City of Pagedale ( City ) Ordinance No and sentencing him to pay a fine of $100. Murphy argues the trial court's judgment is not supported by sufficient facts and that City Ordinance No is unconstitutionally vague and indefinite because it fails to provide a definition for pit bull. We disagree and affirm the trial court's judgment. Murphy is a resident of the City and was charged with possession of a pit bull on his premises in violation of City Ordinance No Murphy demanded a jury trial and the case was transferred to the Circuit Court of St. Louis County. However, in lieu of trial, Murphy and the City entered into a Joint Stipulation of Facts. The parties agreed to the following pertinent facts: On November 2, 2002 and November 16, 2002, Murphy owned, maintained and possessed a pure bred American Staffordshire Terrier in the City. According to the website ( Website ), the only breed that can be called a Pit Bull (with the p and b capitalized), is the American Pit Bull Terrier. Also according to the Website, the term pit bull (with the p and b not capitalized) is used to describe The American Pit Bull Terrier and any other similar, related, or look-a-like breed or mix. The Website further recognizes that use of the term pit bull to describe a specific group of dogs has become commonplace in certain circles... and breeds that are typically referred to as pit bulls include... American Staffordshire Terriers... City Ordinance No states in relevant part that, No person shall within the City raise, maintain or possess within his or her custody or control a dog of the pit bull breed. (Emphasis added). The trial court found Murphy guilty of violating City Ordinance No and sentenced him to pay a fine of $100. This appeal follows Thomson Reuters/West. No Claim to Orig. US Gov. Works.

4 City of Pagedale, Missouri v Murphy, 142 S.W.3d 775 (E.D. Mo Ct App, 2004) Page 4 In his only point on appeal, Murphy argues the trial court's judgment is not supported by sufficient facts and that City Ordinance No is unconstitutionally vague and indefinite because it fails to provide a definition for the term pit bull. [1][2] Although the issue of this Court's jurisdiction has not been raised by either party, we have a duty to address our jurisdiction sua sponte. G.Q. Gentlemen's Quarters, Inc. v. City of Lake Ozark, 83 S.W.3d 98, 100 (Mo.App. W.D.2002). While the Supreme Court of this State generally has exclusive jurisdiction over cases dealing with the validity of a statute or a constitutional provision of this State, [c]laims that municipal ordinances are constitutionally invalid are not within the exclusive appellate jurisdiction of the Missouri Supreme Court. Id. Therefore, we have jurisdiction to initially address the *778 constitutionality of City Ordinance No on appeal. [3] We will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law. Rose v. Board of Zoning Adjustment Platte County, 68 S.W.3d 507, 512 (Mo.App. W.D.2001). [4][5][6][7] An ordinance will not be declared void for uncertainty if it is susceptible to any reasonable construction that will sustain it. City of Clarkson Valley v. Jones, 872 S.W.2d 531, 532 (Mo.App. E.D.1994). There is a presumption that ordinances enacted pursuant to a municipality's police powers are reasonable. Id. There is also a presumption that local government ordinances are constitutional. Id. [8][9] An ordinance is void for vagueness when it uses terms so vague that a person of common intelligence must guess at its meaning and would differ as to its application. Opponents of Prison Site, Inc. v. Carnahan, 994 S.W.2d 573, 582 (Mo.App. W.D.1999) (quoting, Jones, 872 S.W.2d at 532). The vagueness doctrine is premised upon the due process requirements in the United States and Missouri constitutions. Id. Here, City Ordinance No states, No person shall within the City raise, maintain or possess within his or her custody or control a dog of the pit bull breed. (Emphasis added). There does not appear to be any Missouri case addressing the precise issue of whether the use of the term pit bull in an ordinance or statute without a definition is so vague and indefinite that the law is unconstitutional. However, the Supreme Court of Ohio in State v. Anderson, 57 Ohio St.3d 168, 566 N.E.2d 1224 (Oh.1991), cert. denied, Anderson v. Ohio, 501 U.S. 1257, 111 S.Ct. 2904, 115 L.Ed.2d 1067 (1991), has addressed the constitutionality of a similar law in their jurisdiction. We find its reasoning and holding instructive and apply it here. In that case, the Ohio statute stated that a vicious dog was any dog that belong[ed] to a breed that is commonly known as a pit bull dog, and that [t]he ownership, keeping, or harboring of such a breed of dog shall be prima-facie evidence of the ownership, keeping, or harboring of a vicious dog. Id. at 1225 (quoting Ohio R.C (A)(4)(a)(iii)). The dog owner in that case claimed on appeal that this statute was unconstitutionally void for vagueness. Id. at The court disagreed with the dog owner and held that the statute was not unconstitutionally void for vagueness. The court reasoned that pit bull dogs are distinctive enough that the ordinary dog owner knows or can discover with reasonable effort whether he or she owns such a dog. Id. at The court specifically discussed certain distinguishable physical characteristics FN1 of pit bulls, as well as certain distinctive behavioral features. FN2 *779Id. at The court concluded that the physical and behavioral traits of pit bulls together with the commonly available knowledge of dog breeds typically acquired by potential dog owners or otherwise possessed by veterinarians or breeders are sufficient to inform a dog owner as to whether he owns a dog commonly known as a pit bull dog. Id. at Additionally, the court noted that whether a particular dog is a pit bull and covered by the law is an evidentiary issue to be determined at trial, not a constitutional law issue. Id. at (citing Vanater, 717 F.Supp. at 1244). FN1. The court cited to the following description of a pit bull's physical characteristics from the Kansas Supreme Court in Hearn v. Overland Park, 244 Kan. 638, 772 P.2d 758, 763 (Kan.1989): physical features [of pit bull dogs] include a short, squatty body with developed chest, shoulders and legs; a large, flat head; muscular 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

5 City of Pagedale, Missouri v Murphy, 142 S.W.3d 775 (E.D. Mo Ct App, 2004) Page 5 neck and a protruding jaw... [T]hey... have extremely strong jaws and biting power and they tend to clamp on to something and not let go. Anderson, 566 N.E.2d at 1227 (quoting Hearn, 772 P.2d at 763). FN2. The court listed the following description of a pit bull's behavioral characteristics from the United States District Court in the Southern District of Ohio in Vanater v. Village of South Point, et al., 717 F.Supp. 1236, 1240 (S.D.Ohio 1989): a) grasping strength, b) climbing and hanging ability, c) weight pulling ability, d) a history of frenzy, which is the trait of unusual relentless ferocity or the extreme concentration on fighting and attacking, e) a history of catching, fighting, and killing instinct, f) the ability to be extremely destructive and aggressive, g) highly tolerant of pain, h) great biting strength, i) underlying tenacity and courage and they are highly unpredictable. Anderson, 566 N.E.2d at 1228 (quoting Vanater, 717 F.Supp. at 1240)). court's judgment finding that Murphy violated City Ordinance No by possessing a pit bull in the City was supported by the facts and evidence before it. Therefore, we find City Ordinance No is not unconstitutionally vague and indefinite and the trial court's judgment is supported by competent and substantial evidence. AFFIRMED. SHERRI B. SULLIVAN, C.J., and MARY R. RUS- SELL, J., Concur. Mo.App. E.D.,2004. City of Pagedale v. Murphy 142 S.W.3d 775 END OF DOCUMENT We agree with the court's reasoning in Anderson as discussed above and find that City Ordinance No is not unconstitutionally vague and indefinite simply because it does not provide a definition for the term pit bull. As already discussed above, given the distinctive physical and behavioral characteristics of pit bulls, as well as the general knowledge and information available to dog owners, it should be apparent to Murphy whether the dog he owns is of the pit bull breed as is prohibited by City Ordinance No Finally, as the court in Anderson correctly points out, whether a particular dog is a pit bull is an evidentiary issue for trial, not a constitutional law issue. See id. [10] Furthermore, in the case before us, the term pit bull in City Ordinance No is not capitalized and the parties stipulated in their Joint Stipulation of Facts before the trial court that according to the Website, the term pit bull (with p and b not capitalized) is used to describe the American Pit Bull Terrier and any other similar, related or look-a-like breed. The parties also agreed in their Joint Stipulation of Facts that the Website recognized that American Staffordshire Terrier, the breed of dog that Murphy owns, are typically referred to as pit bulls. Therefore, the trial 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

6 Westlaw Delivery Summary Report for NELSON,KORY Date/Time of Request: Monday, April 6, :28 Central Client Identifier: ANIMAL CONTROL Database: KEYCITE-HIST Citation Text: 142 S.W.3d 775 Service: KeyCite Lines: 15 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.

7 Date of Printing: Apr 06, 2009 KEYCITE City of Pagedale v. Murphy, 142 S.W.3d 775 (Mo.App. E.D.,Jun 15, 2004) (NO. ED 83655) History Direct History => 1 City of Pagedale v. Murphy, 142 S.W.3d 775 (Mo.App. E.D. Jun 15, 2004) (NO. ED 83655), rehearing and/or transfer denied (Jul 29, 2004), transfer denied (Sep 28, 2004) Court Documents Appellate Court Documents (U.S.A.) Mo.App. E.D. Appellate Briefs 2 CITY OF PAGEDALE, Plaintiff/Appellee, v. Sean MURPHY, Defendant/Appellant., 2004 WL (Appellate Brief) (Mo.App. E.D. Feb. 18, 2004) Brief of Appellant (NO. ED83655) 3 CITY OF PAGEDALE, Plaintiff/Respondent, v. Sean MURPHY, Defendant/Appellant., 2004 WL (Appellate Brief) (Mo.App. E.D. Apr. 05, 2004) Respondent's Brief Circuit Court Cause No. 03CR-132 (NO. ED83655) 2009 Thomson Reuters. All rights reserved.

8 Westlaw Delivery Summary Report for NELSON,KORY Date/Time of Request: Monday, April 6, :28 Central Client Identifier: ANIMAL CONTROL Database: KEYCITE-REFS Citation Text: 142 S.W.3d 775 Service: KeyCite Lines: 83 Documents: 1 Images: 0 The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters, West and their affiliates.

9 Date of Printing: Apr 06, 2009 KEYCITE City of Pagedale v. Murphy, 142 S.W.3d 775 (Mo.App. E.D. Jun 15, 2004) (NO. ED 83655) Citing References Positive Cases (U.S.A.) Mentioned 1 Houpt v. Houpt, 174 S.W.3d 92, 96 (Mo.App. S.D. Oct 26, 2005) (NO ) Secondary Sources (U.S.A.) 2 Validity and construction of statute, ordinance, or regulation applying to specific dog breeds, such as "pit bulls" or "bull terriers", 80 A.L.R.4th 70 (1990) 3 Constitutionality of "dog laws.", 49 A.L.R. 847 (1927) 4 McQuillin The Law of Municipal Corporations s 24:282, Generally (2008) HN: 4,10 (S.W.3d) 5 Ordinance Law Annotations Animals, Domestic s 15, Vicious dogs (2009) 6 33 Am. Jur. Trials 195, Pit Bull Dog Attack Litigation (2009) 7 Am. Jur. 2d Animals s 20, Regulation of dogs--pit bull terriers (2008) HN: 4 (S.W.3d) 8 ATTACKING THE DOG-BITE EPIDEMIC: WHY BREED-SPECIFIC LEGISLATION WON'T SOLVE THE DANGEROUS-DOG DILEMMA, 74 Fordham L. Rev. 2847, 2887 (2006) HN: 4 (S.W.3d) Court Documents Appellate Court Documents (U.S.A.) Appellate Briefs 9 Henry RENIGER, Plaintiff-Appellant, v. Michael MCCLURE, et al., Defendants-Respondents., 2005 WL , * (Appellate Brief) (Cal.App. 2 Dist. Aug 24, 2005) Appellant's Opening Brief (NO. B183014) HN: 4,10 (S.W.3d) 10 THE FIREMEN'S RETIREMENT SYSTEM OF ST. LOUIS, et al., Plaintiffs/Respondents, v. CITY OF ST. LOUIS, et al., Defendants/Appellants., 2006 WL , * (Appellate Brief) (Mo. Nov 2006) Substitute Brief of Respondents The Firemen's... (NO. SC87977) HN: 7 (S.W.3d) 11 THE FIREMEN'S RETIREMENT SYSTEM OF ST. LOUIS, et al., Plaintiffs/Respondents, v. CITY OF ST. LOUIS, et al., Defendants/Appellants., 2006 WL , * (Appellate Brief) 2009 Thomson Reuters. All rights reserved.

10 (Mo.App. E.D. Apr 14, 2006) Brief of Respondents the Firemen's Retirement... (NO. ED86921) HN: 7 (S.W.3d) Trial Court Documents (U.S.A.) Trial Motions, Memoranda and Affidavits 12 COALITION OF HUMAN ADVOCATES FOR K9'S & OWNERS, An Unincorporated Association, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, Mayor Gavin Newsom in His Capacity as the Mayor of the City and County of San Francisco, Carl Friedman in His Capacity as Director of San Francisco Animal Care and Control, San Francisco Animal Care and Control, and Does 1 Through 50, Inclusive, Defendants., 2007 WL , * (Trial Motion, Memorandum and Affidavit) (N.D.Cal. Jan 17, 2007) Reply in Support of Motion to Dismiss for Lack of... (NO. C MMCC M) 13 COALITION OF HUMAN ADVOCATES FOR K9'S & OWNERS, an Unincorporated Association, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, Mayor Gavin Newsom in His Capacity as the Mayor of the City and County of San Francisco, Carl Friedman in His Capacity as Director of San Francisco Animal Care and Control, San Francisco Animal Care and Control, and Does 1 through 50, Inclusive, Defendants., 2006 WL , * (Trial Motion, Memorandum and Affidavit) (N.D.Cal. Oct 04, 2006) Motion to Dismiss First Amended Complaint for... (NO. C MMC MM) 14 Sonya DIAS, Hillary Engel, Sheryl White, Individually and on behalf of all persons similarly situated, Plaintiffs, v. THE CITY AND COUNTY OF DENVER, COLORADO; John W. Hickenlooper, in his official and individual capacity; Nancy Severson, in her official and individual capacity; Doug Kelly, in his official and individual capacity; Juan Zalasar, in his official and individual capacity, Defendants., 2007 WL , * (Trial Motion, Memorandum and Affidavit) (D.Colo. Aug 15, 2007) Plaintiffs' Response to Motion to Dismiss (NO. 07-CV WDM-MJW) 15 THE CITY OF GREENWOOD, MISSOURI, Plaintiff, v. HUNT MARTIN MATERIALS, LLC, et al., Defendants., 2007 WL , * (Trial Motion, Memorandum and Affidavit) (Mo.Cir. Nov 02, 2007) Defendants' Response to Greenwood's Second Motion... (NO CV01579) HN: 4,8 (S.W.3d) 2009 Thomson Reuters. All rights reserved.

Civil Action No. 10cv00416 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT QUINTON RICHARDSON, CITY OF WINTHROP, MASSACHUSETTS,

Civil Action No. 10cv00416 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT QUINTON RICHARDSON, Plaintiff/Appellant v. CITY OF WINTHROP, MASSACHUSETTS, Defendant/Appellee APPEAL FROM THE UNITED STATES