Uupdate Oct. 1, 2010:  United States District Court Judge Walker D. Miller has denied Denver's motion for summary judgment, meaning the case will proceed to trial.

Judge Miller had earlier dismissed the plaintiffs' case, but the 10^th Circuit Court of Appeals reversed that decision in part, finding the plaintiffs, Sonya Dias, Hillary Engel and Sheryl White, could bring a lawsuit on a theory that their rights to substantive due process were violated by Denver's earlier enforcement of the pit bull ban against them.

Read more about the case and the 10^th Circuit's opinion in Animal Law Coalition's earlier report below.

Now back in Judge Miller's court, the judge has decided plaintiffs are entitled to a trial on the issue of whether Denver's breed ban is rationally related to any legitimate government interest. The judge announced that, "a reasonable trier of fact may find that Plaintiffs' experts are correct and there exists no rational basis for a breed specific ordinance."

Plaintiffs' expert Dr. Karen Overall, MA, VMD, PhD, testified "that whether a dog bites is not a question of his breed ...nor is breed determinative of propensity to attack and that appearance is not necessarily reliable in determining a breed."  Dr. Overall explained, "People need to stop thinking about breeds because they think they are all the same, and start thinking about individual dogs and the factors that can cause serious damage in a bite."

Dr. Randall Lockwood, another expert for Plaintiffs, agrees with Overall, stating that "the breed of a dog is not a predictor that a dog will attack or bite".

The defendants also challenged plaintiff Dias' standing to bring the lawsuit, meaning they claimed she did not suffer a likely, actual or imminent, injury in fact that is "fairly ...traceable to the challenged action of the defendants".  But Judge Miller observed that as the 10^th Circuit already found, she does have standing: "Although Ms. Dias's dog was never evaluated, seized or the subject of an administrative hearing by Animal Control, ...[i]n response to the Ordinance, she changed her behavior. She sold real property in Denver and moved outside the city and county.... She no longer takes her dogs to visit friends who live in Denver. .... She indicates that she does not use the Denver parks because of the Ordinance.... She is cautious about driving into the city with her dogs in the vehicle for fear that they may be seized....Due to her ownership of two dogs that either are or display characteristics of Pit Bulls, Ms. Dias has a personal stake and interest in a case challenging the Ordinance."

Update May 27, 2009: In a victory for dogs, the U.S. Court of Appeals for the 10th Circuit, has issued an order that will allow the challenge to Denver's pit bull ban to proceed on the claim that the ordinance violates substantive due process because it is not rationally related to a legitimate government interest. 

The plaintiffs Sonya Dias, Hilary Engel and Sheryl White, claim that they were forced either to surrender their dogs to individuals who reside outside Denver, move from Denver or have their dogs destroyed when there is no evidence that the animals posed a threat to public safety or constituted a nuisance. They claim the Ordinance is as a result not rationally related to a legitimate government interest.

The federal appeals court is not saying they will succeed on this claim, just that the lower court should not have dismissed it without giving them the opportunity to prove it.

The federal appeals court decision reverses, in part, the earlier ruling of the the federal district court which had dismissed the entire case. (Read Animal Law Coalition's reports below for more on the district court opinion dismissing the case.)

The federal appeals court agreed, however, that the plaintiffs cannot proceed on their claim that the Ordinance banning "pit bulls" is unconstitutionally vague. 

The Court explained, "'[I]t is difficult to imagine, at least with respect to purebred specimens, how the breed could be identified more precisely in the Ordinance.'... Moreover, and for the same reason, the Ordinance is sufficiently definite such that it does not encourage arbitrary enforcement with respect to registered pure breeds. The Ordinance, herefore, is admittedly not 'vague in all of its applications'". 

In other words, the Ordinance refers to AKC or UKC standards that owners of registered purebreed dogs and animal control can easily follow to determine if the dog is a banned breed. It doesn't matter that the ordinance might be arbitrarily enforced against dogs that are not registered purebreeds. It doesn't matter if the ordinance is too vague for owners to know if their dogs will be considered "pit bulls".   

In fact, it is virtually impossible to determine breed simply based on appearance.

The Appeals Court also said the plaintiffs cannot proceed on their claim that the Ordinance infringes on a fundamental liberty interest, the human/animal bond. The court decided the plaintiffs had not made sufficient allegations to establish the existence of the human/animal bond. 

In going forward, the plaintiffs cannot seek prospective relief. This means they cannot ask the court to stop or enjoin future enforcement of the ban.

The Court of Appeals explained that is because "they have not alleged a credible threat of future prosecution under the Ordinance...Specifically, there is no credible threat of future enforcement because none of the plaintiffs currently resides in Denver and none has alleged an intent to return."

The Court said, however, the plaintiffs can try to recover damages for losses caused as a result of past violations of their right to substantive due process.  In its opinion the Court observed, "Dias and Engel both suffered actual injuries because they were forced to move from Denver to avoid the reach of the Ordinance. White suffered actual injury when her dog, Sherman, was seized by animal control officers, and when she was charged with a criminal violation of the Ordinance. ...Moreover, these injuries were caused by the Ordinance-Dias and Engel would not have left Denver but for the Ordinance nor would Sherman have been seized and White criminally charged."

Download a copy of the court's opinion at the end of this article.

Go here for a recent analysis by Karen Delise of the National Canine Research Council of the Denver pit bull ban.  

Read Animal Law Coalition's earlier reports below for more on this case including a detailed look at the plaintiffs' allegations.

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