Update June 8, 2008: The plaintiffs in this case have decided to appeal the judge's dismissal of their case.   

Indeed, Colorado federal District Court Judge Walker D. Miller dismissed all of their claims in this case. 

Procedural Due Process 

The judge found there was no violation of procedural due process rights, noting the ordinance provides for a hearing following the seizure of the dog.

The judge said that a hearing before the seizure of the dog is not necessary, pointing out pit bulls are deemed a threat to the public's health and safety and thus the "state must act quickly" in removing them. (Yes, the judge actually said this.)

According to Judge Miller, the plaintiffs have no standing to challenge the city's unwritten policies of summarily executing dogs when the owner has previously been cited under the Ordinance and coercing waivers of constitutional rights.  That means the plaintiffs faced no threat the city would in the future carry out these unwritten policies against them.

Vagueness

Judge Miller also decided the ordinance was not unconstitutionally vague, that there were sufficient standards for people including law enforcement to determine what is meant by a pit bull.

In the opinion the judge said, "The Ordinance provides a clear standard to determine violations-it references breed standards articulated by the American Kennel Club or the United Kennel Club. ... The City of Denver keeps a copy of these standards on file at their office for reference by the public..., and the breed standards are available online.... Although the standards are somewhat scientific in scope, they are not so scientific that a person of ordinary intelligence would be unable to understand their meaning."  

Equal Protection 

The judge found the 14^th Amendment's equal protection clause does not apply to the claim that it is unconstitutional to require citizens to choose between having an administrative hearing to determine whether the dog is a pit bull or admitting that the dog is a pit bull.

The judge decided in somewhat circular reasoning, "As it is the choice of the owner and not a government classification, there is no basis for an equal protection claim because the Fourteenth Amendment only constrains state actions." Of course, it's the government that forced the choice.

Substantive Due Process

Finally, the judge rejected the plaintiffs were denied substantive due process rights. The plaintiffs claimed "the ordinance deprives them of their liberty and property interests in their dogs. Plaintiffs allege that they are forced to either surrender their dogs to individuals who reside outside Denver or have their dog destroyed ‘when there is no evidence that the animals posed a threat to public safety.'"

The judge did not respond directly to the argument the animals were not shown to pose any threat to the public. Instead the judge said there is no constitutionally protectable right in the "'human/companion animal bond'".  The judge said the right to own dogs is limited by the government's interest in protecting the public's health and safety.

The Opinion summarizes, "[T]he Ordinance employs specific breed standards to determine whether a dog is a pit bull. I conclude, that an ordinance passed for the health and safety of the public that references specific breed standards and, if requested, holds a hearing to determine the application of those standards, is not, as a matter of law, an arbitrary deprivation of a person's property right, especially when that property right has been expressly held to be subject to the police power of the state."

For more on the plaintiffs' stories about their fight to keep their beloved, pets and their claims in this case, read Animal Law Coalition's report below.  

Original report: A lawsuit has been filed in federal court in Denver that challenges the Denver pit bull ban.

Denver bans pit bulls defined as "any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits" of these breeds. Denver Mun. Code §8-55

The ordinance makes it unlawful to "own, possess, keep, exercise control over, maintain, harbor, transport, or sell" any pit bull dog within the city. Denver Mun. Code §8-55

The ban was first enacted in 1989 but because of a state law passed in 2004 that banned breed specific legislation, Colorado Rev. Stat. §18-9-204.5(5)(b), Denver suspended enforcement of its pit bull ordinance. Enforcement of the pit bull ban resumed on May 9, 2005 when a court ruled the city and county of Denver could enforce the ban.

According to the Complaint filed in this case since reinstatement of the ban on May 9, 2005, the city has killed at least 1,100 dogs believed to be pit bulls or dogs possessing the majority of physical traits of those breeds. Some estimates place the death toll much higher, from 1,400 to  2000 or more.

Denver Assistant City Attorney Kory Nelson, a proponent of the ban has insisted pit bull attacks are "more likely" to hurt someone seriously than other dogs.

Two of the plaintiffs, pit bull owners, Sonya Dias and Hillary Engel, were forced to leave Denver with their dogs because of the ban. Neither dog had ever threatened or hurt anyone or another animal.

Dias rescued 3-year old Gryffindor in Griffin, Georgia, after "finding him chained and bearing signs of abuse, including possible use as a "bait" animal by dogfighters". She moved from Denver rather than surrender him when the ban was reinstated.

In Hillary Engel's case an animal control officer threatened to seize the dog, Cysco, an 8 year old. Ms. Engel immediately contacted Animal Control and was advised to submit Cysco to an evaluation if she had any doubts about whether Cysco was prohibited under the Pit Bull Ordinance.

On May 9, 2005 Ms. Engel took Cysco to Animal Control for the evaluation. The evaluation was conducted by three individuals said to be "experts" in identifying animals prohibited under the Pit Bull Ordinance.

Following the evaluation, Ms. Engel was informed by an unknown Animal Control official that although Cysco was "beautiful and friendly, she looked too much like a Pit Bull to remain in Denver". However, the official gave Ms. Engel 48 hours to remove Cysco from Denver.

A third plaintiff, Sheryl White, claims Sherman, her two year old pit bull, was seized by an Animal Control officer who was responding to a neighbor's report that she had a pit bull dog. Sherman also had never displayed menacing or threatening behavior; he had never hurt anyone or another animal.

Ms. White later tried to see her dog at the city shelter but was not allowed to do so. Though the ordinance does not require this, to remove the dog from the shelter, she and her husband, Dana White, were required to bring a third person who agreed to take possession of the dog and remove him from the city.

On December 23, 2005, Ms. Lauren Krieger signed a form attesting to her willingness to remove Sherman from Denver.

Mr. White was also required to sign a form stating: "I, Dana White, in consideration for the release of my pitbull dog from the Division of Animal Control do hereby agree to immediately remove the pit bull dog from the city and county of Denver."

Mr. White was then required to sign a second form stating that "I, Dana White, . . .agree that Sherman, black-white, male, is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or exhibits the majority of physical traits of any (1) or more of the above breeds." After the signature block, the form states, "Note: signing this document waives your right under D.R.M.C. §(f) to contest the determination that this animal is a pit bull."

Sherman was released and removed from Denver.

The Whites requested a hearing anyway to challenge the determination Sherman was prohibited by the ordinance. Based on evaluations by three Animal Control employees, the hearing officer determined Sherman to be a prohibited animal under the Pit Bull Ordinance. Animal Control refused to provide the Whites with copies of the evaluations.

After charges for violating the ordinance were dropped, Ms. White returned to Denver with Sherman.

The plaintiffs claim the City and County of Denver violate rights to due process by (1) seizing animals without a prior hearing, (2) summarily executing dogs whose owners have one previous violation of the ordinance, and (3) coercing dog owners to waive their rights to due process and self-incrimination before they are allowed to remove seized dogs from the jurisdiction.

The plaintiffs also claim the ordinance is unconstitutionally vague and does not give dog owners fair warning of the prohibited conduct. The plaintiffs point out the ordinance refers to breed standards most people would not be able to identify. After all, even animal control relied on "experts" to decide if Engel's and White's dogs were banned by the ordinance. And, the so called experts would not even give Whites their methodology for determining whether a dog is banned. So, how does a dog owner know if he or she is violating the law?

The plaintiffs further allege it is a violation of their liberty and property interests protected by the Fourteenth Amendment to the Constitution for the city to seize and kill dogs that pose no nuisance or threat to the public safety.

The Progressive Law Center has joined the suit which also names as defendants Denver mayor, John W. Hickenlooper, Nancy Severson, Manager of the Denver Department of Environmental Health, Doug Kelley, Director of the Division of Animal Control, and Major Juan Zalasar, the Supervisor of the Animal Control investigators for the Denver Division of Animal Care and Control.

The Plaintiffs have requested certification as a class, claiming they represent persons whose animals were seized by Defendants under the Pit Bull Ordinance after April 8, 2005 and persons who removed their animals from Animal Control after April 8, 2005 and signed self-incriminating statements and/or due process waivers.

You can help! Contact Denver officials and let them know it's time to repeal the pit bull ban! Click here to find names and contact information for the mayor and council members.

Click here for a look at how this ban became law and earlier legal challenges.

by Laura Allen of the Animal Law Coalition