By Katy Michaelis
The fight between pit bull owners and the City of Denver still has not ended, and this time the dog-lovers made it all the way to the Tenth Circuit in their challenge. Diaz v. City and County of Denver, No. 08-1132 (10th Cir., May 27, 2009). Plaintiffs, three pit bull owners and former residents of Denver, brought constitutional challenges against the City’s pit bull ban, all of which the district court dismissed under F.R.C.P. 12(b)(6) for failure to state a claim. Plaintiffs claimed that the ordinance was void for vagueness and violated substantive due process under the 14th Amendment. The Tenth Circuit upheld the district court’s decision to dismiss the vagueness claim but reversed the dismissal of the substantive due process claim and remanded the case for the district court to hear argument on this claim.
The court first analyzed whether Plaintiffs had standing to bring their claims. The court reviewed separately standing for prospective relief and standing for retrospective relief, and found that Plaintiffs only had standing for retrospective relief. The court found that Plaintiffs had not shown a credible threat of future prosecution under the City’s ordinance, which is required for prospective relief under Ward v. Utah. None of the Plaintiffs currently reside in Denver nor have any of the Plaintiffs alleged intent to return. However, each Plaintiff has suffered past injuries that could be remedied by a favorable decision, namely that they were either forced to move out of Denver or had their dogs seized and faced criminal charges under the ordinance. Thus, Plaintiffs had standing for retrospective relief.
The court next looked to whether Plaintiffs had a claim that the statute was void for vagueness under the Due Process Clause of the 14th Amendment. Because Plaintiffs failed to “demonstrate that the law is impermissibly vague in all of its applications” under Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., the court found that there was no claim for vagueness. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,455 U.S. 489, (1982). While the ordinance includes some descriptions of dogs that are vague and subjective, the descriptions still “can clearly fit a pure breed American Pit Bull Terrier” and other breeds included in the ordinance. Further, the statute is clear on enforcement standards. Thus, the Tenth Circuit found that the district court properly dismissed this claim.
In reviewing Plaintiffs’ substantive due process claim, the court first determined the level of scrutiny. The court dismissed Plaintiffs’ argument that the human/companion animal bond is a fundamental liberty interest and thus determined that the ordinance should be reviewed under rationality review. The court then found that it is at least plausible that the City has not shown a rational relationship between the ordinance and the City’s interest in animal control to protect public health and safety because the City has not provided evidence that pit bulls as a breed pose a threat to public safety. The court also dismissed the City’s argument for a “shocks the conscious” review, affirming the suggestion in Seegmiller v. Laverkin City and Chavez v. Martinez that this test is reserved for executive, rather than legislative, action. Because the court need not find that Plaintiffs’ argument is likely to succeed, rather only that it rises above a speculative level, the court reversed the district court’s dismissal for failure to state a claim.
Plaintiffs will now have the opportunity to make arguments based on their constitutional claim that the pit bull ban does not withstand rationality review. This will be one in a long line of challenges to this ban originally enacted in 1989, including a previous constitutional challenge that failed in the Colorado Supreme Court and a state law banning breed-specific local legislation which was declared unconstitutional at the state level for violating home rule.