When Bradley informed the apparently intoxicated Stephens of the charge of teasing dog, Stephens said, “the dog started it,” according to the police report.
Stephens plead not guilty April 21 to the misdemeanor charge in municipal court.
His attorney Jim Hardin is preparing motions to dismiss and suppress, claiming his client’s barking is protected under the First Amendment. Because Stephens wasn’t charged with any other crimes, and if barking is free speech, he is also protected under the Fourth Amendment against illegal search and seizure, Hardin said.
“This is just speech, whether it’s in a language someone understands or not, it’s still protected speech, unless it rises to the level of being so offensive that it constitutes a fighting word, where it would invoke a violent response and is intended to do so,” he said. “It might not be what most people would do ... But it still would constitute speech.”
Hardin points to a 2003 appeals court case where a barking case was dismissed because the man in that instance was barking at a police dog from across the street. The court of appeals did not examine the free speech issue in that case because the issue wasn’t raised. Free speech is the cornerstone of the Mason case, Hardin said.
Sgt. Matt Hayes, who is a canine unit supervisor, said the two cases are dissimilar.
“Distance does matter,” he said. “Obviously a dog is going to feel more threatened with somebody two inches from its nose than it is from a few hundred feet. There is a big difference there.”
Hardin, whose client faces 60 days in jail if found guilty, says distance doesn’t matter.
“Whether you’re 30 feet away or six inches away it’s still speech,” he said. “You have to have something else. It’s a distinction without a difference.”
City Prosecutor Bethany Bennett said it is unusual for Constitutional challenges to appear in her court.
“In municipal court, not a whole lot of people go to that expense,” she said. “But when there’s an interesting issue, I’ll accept the challenge and enjoy it.”
Contact this reporter at (513) 696-4525 or dcallahan@coxohio.com.
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