Denver Lawsuit and thoughts on Constitutionality

Several weeks ago, I posted that the Pit Bull Band group had their court cased dismissed by the US District Court.  I particularly noted that this was a dismissal of the court case -- not a ruling that BSL was indeed Constitutional.

Because I've been pretty busy on other things, I haven't gotten a chance to go over this ruling and what we can learn from it regarding Constitutionality, or lack thereof, of breed specific legislation.  So with the caveat of the "I am not a lawyer" speech, here is the dirt.  The suite challenged the Constitutionality of the Denver law on primarily three different platforms. Here they are -- here are the courts comments on them -- and my comments on their decisions:

1) Procedural due process -- Sonya Dias' group challenged the due process based on two main criteria.

a) One of the criteria was that dogs were seized prior to a trial and that the dogs were seized before a guilty verdict could be levied.  The court ruled that a post seizure hearing was sufficient.  Strangely, one of the statutes they used to uphold this ruling was a case where foxes were seized and tested for rabies because and a post-seizure hearing was deemed sufficient because it was "necessary for the protection of its citizens". The thinking was that the state must act quickly because rabid foxes posed an iminent danger to citizens.  I think it is clearly arguable that a dog that shows no aggressive tendencies creates "imminent and immediate" danger to citizen living in a community and not sure how "pit bulls" can be compared to rabid foxes, which are not domesticated animals and are carrying a disease that is nearly 100% fatal.

b) Unwritten policies - Apparently, once a Denver Animal Control Officer seizes your dog, the only way for someone to get their dog out of doggie prison is to sign a waiver ADMITTING THAT THE DOG IS A PIT BULL.  Kansas City KS has a similar unwritten policy.  The forced signing of guilt is a clear violation of the 5th Ammendment of the US Constitution that frees us from self incrimination.  This was dismissed by the court because none of the defendents had actually signed this waiver.  The reality is that no one with any understanding of the Consitution would ever sign such a waiver, meaning that no one who is smart enough to actually sue for unconstituionality of this law, would actually ever self-incriminate themselves.

2) Vagueness -- based on Colorado statutes, a law is unconstitutionally vague if: a) people of ordinary intelligence have a reasonably opportunity to understand the conduct it prohibits or b) it authorizes or even encourages arbitrary and discriminatory enforcement.  The court ruled that the AKC standards were sufficient enough to not make the law arbitrary or subjective -- but has clearly never had to deal with the subjectiveness of actually having to make decisions based on these criteria.  I think this one would have been easily won in court once judges realized how difficult and arbitrary such judgments of 'breed' are. As for the arbitrary enforcement, I hope the folks in charge of the Aurora lawsuit read this.

3) Substantive Due Process - The complaint here was that a dog owner could arbitrarily have their dog (property) taken from them and destroyed when there is no evidence that the animal posed a threat to public safety.   The courts agree that dogs are accorded property status (that's important) but argue that dogs are subject to the police power of the state to protect the safety and welfare of the public (we're back to rabid foxes again).   There is a huge difference here between the precedent the courts used and the reality of the two scenerios.  Rabies (in the case of rabid foxes) are undeniably and inarguably a safety risk to the citizens of a community.  Being a "pit bull" is definitely an arguable "immediate" safety risk.

In a nutshell, I think the courts missed a huge opportunity to discuss some pretty serious issues:  the lack of Constitutionality of breed specific laws based on their vagueness, failure to provide due process and clear violation of the 5th Amendment.  There's always next time...

Comments

[s kennedy]

UH--the courts missed the opportunity (nice way to phrase it) because they do not want to hear the issues. The breed ban is a hot potato case that few want to be linked to since people will associate any other maulings,bites, you name it, with whoever gets it stopped. Even if dog isn't an APBT.

The case of the non rabid foxes was basically showing that the state can do that if there is safety involved. There is a presumption of "safety" issue even if the dogs never did anything, bec the dog fanciers case says the dogs are not like other dogs. Only the Tellings case, w/3 courts agreeing, that the APBT is not inherently dangerous comes close--but since dog fanciers was decided by using a plastic surgeon and some other dim wit to say the dogs attack via packs, the best thing going is the legislature that prohibits BSL. Before it was prohibited, a lower court judge DID say that failure to be able to prove beyond a reasonable doubt (the breed) was a big cause for concern, BUT since the legislature then outlawed BSL, the point became moot. Unfortunately politics has already screwed up the challenge in 2005 because a judge found "Denver" ordinance to be a "local" concern. It would take a ruling finding it was NOT a local concern to change it, and it would likely have to be done somewhere other than Denver. Which is possible. If enough of those were done, or if a criminal appeal was taken re the breed ID, there might start to be more concern as to why Denver is the main hold out.

[Brent]

S- do you know who is heading the Aurora lawsuit? Seems like the recent story about the selective enforcment of the Aurora ban and the way they define "unconstitutionally vague" in this dismissal almost makes that a slam dunk? Or am I wrong on that? Although this one seems like a slam dunk anyway given that it is impossible to determine accurately a dog's breed and the looks like or substantially similar clauses are WAY open to interpretation...

[EmilyS]

as I recall the original supreme court ruling upholding BSL, these were EXACTLY the same reasons.

So in this case, the court was just repeating the precedent and found no reason to overrule it.

I think there's sufficient evidence now that the courts are a DEAD END in Colorado. More rulings like this will only hurt attempts to fight BSL locally.

Given Colorado's home rule mess, this is going to have to be fought one local power structure at a time. That means electing new city councils

[s kennedy]

B, Yes I know who it is. Yes, the Denver case (Colorado dog Fanciers) is a problem for CO, but like I mentioned, that's bec ONE judge said DENVER's ordinance was a local concern. that did not necessarily apply to all other cities, but even if it did, I think it could be shown not to just be a local concern.

BSL/anti BSL is never a slam dunk unfortunately. There is too much political nonsense involved, but since legislature has outlawed it, maybe there might be a chance. If aurora case gets taken out, it will be appealed. That is my understanding anyway..........with the writ of mandamus filed against MSN in Los angeles, and the ab1634 coming up in CA, as well as the con law fight as to the validity of AB2296 (animal enterprise protection act, CA) the animal rights extremist types are under fire right now. Which is good for those who don't care for peta/hsus and etc. I can get the court docs or you can see them (or an outline)posted on the dog and pony blog (wordpress) which is where i saw it. It seems the UC school scientists are now pitted against the monkey primate project, as to whether putting the name/phone/addy of scientists on their website can be controlled. I believe it can be controlled bec clearly they put it there so others can harass them, as they already did by engaging in a home invasion with 6 masked people accosting the husband, and the 7yr old kid hiding behind the door.Don't know where the scientist-wife was.
Court granted TRO and in effect until next year, but monkey project people filed Fed lawsuit in Atlanta. It will be interesting, and if I am not mistaken, aurora case has already submitted some data re ARs and the entire BSL movement.

[Caveat]

The judge in Denver is about an hour from retirement and also didn't understand the application.

This isn't over.

In the last Denver case, testimony was twisted and cherry-picked to suit the city's case.

Supreme court of Alabama ruled that 'pit bulls' are not inherently dangerous by nature - duh.

We go to Appeal in September (Ontario), hoping that some common sense comes from that decision.

I'm really sick of this s**t. I can't believe they are getting away with this in supposedly civilized countries that like to brag about democracy and civil rights.

Really, really sick of it.

[Becky]

Could not agree w/ you more, Caveat. It is absolutely beyond ridiculous that people are having to fight so hard against something so utterly stupid and irrational--- absolutely NO basis in fact. Not only that -- immoral. Totally beyond me! People are forced put so much time, energy and money that could and should very well be spent on real issues.

[Becky]

PS: Totally insane!