Denver Court Case Revived

An Appellate Court Judge has allowed a lawsuit against the city of Denver's breed ban to be allowed to move forward to court.   They can proceed with arguments that the Denver ban is irrational.

This case was dismissed by the court back in March of 2008.  After reading through the case, it appeared that the court dismissed the case for the following three reasons:

1) The plaintiffs did not have standing on the allegations of due process since none of the plantiffs had actually had their due process rights taken away.

2) None of the plaintiffs suffered harms from the law -- since all had moved from the offending juristiction.

3) The courts felt like they didn't provide enough evidence that the law was unconstitutionally vague.

Now, from reading the news clips, it doesn't appear that they will be able to appeal based on due process or vagueness claims (which is unfortunately a huge missed opportunity). However, they should be able to pursue this based on the irrational basis of the law.

However, the rational basis claim should be interesting. Denver's head of animal control Doug Kelly has even admitted that there is no evidence that the city's breed ban has improved overall public safety for the citizens of Denver.

From the Colorado Springs Gazette - November, 2008:

As director of Denver's Animal Care and Control, which has euthanized nearly 2,000 pit bulls in three years, Doug Kelley has to play the bad guy in the pit bull debate. But even he is not a strong advocate for the pit bull ban.

"You'll never see a more controversial ordinance," Kelley said.

He said the ban has lessened the number of attacks by pit bulls, certainly, but he has no evidence that the ban has decreased the total number of dog bites or attacks in the city. He also said the ban gives people "a false sense of security."

So, the ban hasn't shown to decrease the number of bites or attacks, and the head of animal control says it has given people a false sense of security, so the 'rational' nature of the law sure seems to be open to debate. The courts in this country have been pretty lenient with cities on what can be declared rational for the protection of citizens, so this type of case has not been super-effective in the past. However, a lot of the new evidence that came out in the Tellings case, plus the fact that this lawsuit is taking place so long after Denver started enforcing that ban so there is a significant track record of no success could work in our favor on this one.

Either way, the question that comes to my mind is, why is Denver wasting tens of thousands of taxpayer dollars defending a law in court that they even admit is not working?

UPDATE: So I just got a chance to read through the judge's ruling.

The judge in this case is giving them the "ok" to pursue the case on "rational basis". While the judge concedes that the city does have a significant government interest in animal control, the judge does conclude that it is subject to debate that banning 'pit bulls' is not a rational way to improve public safety.

"Pit bull bans sustained twenty years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans ar no longer rational."

Specifically, the judge points out that the AKC and UKC standards for the 'pit bull' breeds -- which the city of Denver declares as accurate and uses to define visually what a 'pit bull' is -- state that the dogs are indeed friendly.

According to the UKC breed standard:

"The American Pit Bull Terrier are an 'extremely friendly' breed 'even with strangers. Aggressive behavior toward humans is uncharacteristic of the breed..."

While the AKC breed standard for the Staffordshire Bull Terrier:

"with its affection for its friends, and children in particular, its off-duty quietness and trustworthy stability, the Staffordshire Bull Terrier is formost an all-purpose dog."

It's interesting that the very source that Denver is using to defend the claims against vagueness is the source that may catch them up on the rational basis argument.

Update #2: Over at the Animal Law Coalition you can download a copy of the judge's ruling for yourself (the file is at the bottom of the page).

Comments

[MichelleD]

Denver is wasting thousands of dollars and killing thousands of dogs all for Nelson's ego.

DENVER CITIZENS WAKE UP!!!! You can stop this madness!

[KC KS Kills Dogs]

I sincerely hope that Denver citizens are finally catching on that one person's ego - KORY NELSON - is responsible for flawed legislation.

Roverlution, a movement led by Dr Paula Terifaj, launched an ad campaign and placed ads at kiosks in three strategic Denver downtown locations: The Pepsi Center Arena, The Convention Center, and The Coors Field Ballpark. The ads state Which Dog Will Denver Kill Next?

If Denver citizens aren't aware of the insanity of BSL in their city by now, then they are ostriches with their heads in the sand.

[Lisa]

One of the hardest things about arguing against BSL is that it's difficult to know where to start. Virtually everything about BSL is flawed, at every level. The terms aren't objectively defined, the underlying taxonomy isn't consistent, the data isn't reliable or complete or anything close to it, the logic is so sloppy it's 'not even wrong,' and there's no evidence that it's ever been effective by any meaningful measure.

How do you even begin to argue something like that? How far back in the chain of faulty assumptions would you have to go just to find some starting point of mutual understanding? We may as well start by addressing the question of whether we're all just brains in vats, and reality is a fevered dream of our universal subconscious.

[Brent]

Oh, you're so right Lisa. It is flawed on so many levels, it is difficult to know where to start.

For me, I realize there is too much for the typical city council person to comprehend in one, short, digestive piece. So I always start with the fact that there isn't a single, national organization that represents experts in the field of animal welfare/human/animal relations that supports BSL. Not one. The national organizations that represent veterinarians, dog trainers, rescues, shelters, and animal control officers all, unanimously agree that BSL is not a solution to the problem.

If we can get them to realize that no legitimate organization that have ever studied this believes that breed specific measures are an effective/viable solution to the problem, then maybe we can get them to listen to actual ideas that will start solving the problem.

[Lisa]

I suspect that public opinion might play a major role, too. Denver's BSL was passed and reinstated by what I can only describe as a rogue city council. I haven't seen a public opinion poll on the subject, but from what I've seen, breed profiling is increasingly unpopular, almost to the point of being marginal.

I live in a suburb near Denver, and several years ago, a small group of hysterical citizens here started a petition in favor of a breed ban, based on a dog-on-dog attack that dominated our local media for literally months. (Interestingly, when my human child was violently attacked and had his face ripped half off by a Lab, that didn't even merit a line in the police blotter.)

The next city council meeting was standing room only, with what I estimate at 30+ people who signed up to speak on the subject. Exactly two spoke in support of BSL, and those two were incoherent almost to the point of being hebephrenic. One read, verbatim, from a web page that listed several supernatural attributes of 'pit bulls,' including locking jaws, the ability to jump over six foot fences, and the bite pressure of a crocodile. It almost sounded like she was reading a description of a chupacabra or something. The other speaker actually played the 9-11 card, claiming that it was unfair that she should have to live in fear of terrorists and 'pit bulls' (AKA "American Pit Bull Terrorists") at the same time.

Needless to say, city council said they wouldn't be considering any BSL.

I don't know if my city's response was typical, if this represents a genuine shift in public opinion and understanding, or if dog supporters are more likely to speak out than they once were; but if nothing else, it's heartening to remember that these laws aren't being passed by popular vote, and we can hope that some elected officials are starting to feel the heat on the issue.

[EmilyS]

Kory Nelson is certainly an a**h***.
But he is an employee of the city of Denver, and the Denver ban is WHOLLY a product of the City Council.
Not just one City Council, but every City Council since 1990 (and there has been turnover). Each one has refused to reconsider the ban.

I would LOVE if the court overturned the ban on grounds that it's stupid and irrational.. and maybe that's the cover the City Council needs. Though in my heart, having read through years of rulings where courts uphold stupid irrational local laws, I have my doubts.

If Denver falls, other Colorado BSL locations will fall: Castle Rock will fall and Aurora will fall and Commerce City and Wellington will fall.... I can scarcely dare hope.

[Brent]

Aurora still baffles me. They put in a provision that said they would re-look at it in 2 years. In the 2 year report, they noted a 50% increase in dog bites after 3 years of decline, and somehow decided yup, that's what we were going for, and decided to keep it.

[EmilyS]

legal pinheads take a crack at this:
http://volokh.com/posts/1243533932.shtml

[Brent]

Reading the comments there is why I have so little confidence in our legal system.

A couple of thoughts after reading through that:

1) I am fascinated by the number of people who will use the "pit bulls are more dangerous because of their size and strength" argument for anything. It is just crazy to me how few people realize that APBTs are medium sized dogs and that there are multiple breeds of dogs that can be up to 3x the size of the standare APBT. It makes you wonder if they've ever met one of the dogs the claim to know so much about.

2) I wonder if the state ruling that BSL is illegal has anything in it that has set a precedent for the law being irrational. Any time of court-upheld precedent that there is no rational basis for the law (which is why it's illegal in the rest of the state), would be pretty dramatic evidence to bring forward.

As a non-lawyer, I still think that the rational basis claim would be the hardest to win in the courts just becaue it seems like courts would decide in favor of the city more often than not...

[EmilyS]

rational claim discussion from noted legal blogger geek:

http://volokh.com/posts/1243533932.shtml