findlaw denver pit bull court opinion
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DESCRIPTIONFederal appeals court ruling on Denver's pit-bull ordinance.
- 1.FILED United States Court of Appeals Tenth Circuit May 27, 2009Elisabeth A. ShumakerPUBLISH Clerk of Court UNITED STATES COURT OF APPEALS TENTH CIRCUIT SONYA DIAS; HILARY ENGEL; and SHERYL WHITE, individually and on behalf of all persons similarly situated,PlaintiffsAppellants,v.THE CITY AND COUNTY OF DENVER; JOHN W. HICKENLOOPER, individually and in his official capacity; NANCY SEVERSON, individually and in her official capacity; DOUG KELLY, individually and in his official capacity; No. 08-1132 and JUAN ZALASAR, individually and in his official capacity,DefendantsAppellees.------------------------------HUMANE SOCIETY OF THE UNITED STATES; ANIMAL LEGAL DEFENSE FUND; and AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS,Amici Curiae.
2. Appeal from the United States District Courtfor the District of Colorado(D.C. No. 07-CV-00722-WDM) Steven S. Rosenthal (Alan K. Palmer; Karen R. Breslin, Progressive Law Center, LLC; and Michael F. Swick, American Kennel Club with him on the briefs), Kaye Scholer LLP, Washington, D.C., for the Plaintiffs-Appellants.Michael J. Joyce (John M. Eckhardt and Stuart L. Shapiro with him on the briefs), Office of the City Attorney, Denver, Colorado, for the Defendants-Appellees.James W. Hubbell, Kelly, Garnsey, Hubbell & Lass LLC, Denver, Colorado, and Ethan Carson Eddy and Jessica Culpepper, Of Counsel, The Humane Society of the United States, Washington, D.C., filed an Amicus Curiae brief for The Humane Society of the United States in support of Plaintiffs-Appellants.Megan A. Senatori, DeWitt Ross & Stevens, S.C., Madison, Wisconsin, filed an Amicus Curiae brief for the Animal Legal Defense Fund, in support of Plaintiffs- Appellants.Debora M. Bresch, Americn Society for the Prevention of Cruelty to Animals, New York, New York, filed an Amicus Curiae brief for the American Society for the Prevention of Cruelty to Animals, in Support of Plaintiffs-Appellants.Before TACHA, EBEL, and LUCERO, Circuit Judges. LUCERO, Circuit Judge. We consider a constitutional challenge to a Denver city ordinance banninga category of dogs commonly known as pit bulls. 1 Sonya Dias, Hilary Engel, 1 Throughout this opinion, we follow the lead of the parties by referring to(continued...) -2- 3. and Sheryl White allege that the pit bull ban violates the Fourteenth Amendmentbecause it: (1) is unconstitutionally vague on its face; and (2) deprives them ofsubstantive due process. Before the plaintiffs had any opportunity to presentevidence to support their claims, the district court dismissed both claims underFederal Rule of Civil Procedure 12(b)(6). On appeal, the plaintiffs argue that thedistrict court erred by prematurely dismissing the case at the 12(b)(6) stage. Weagree in part.We conclude that the plaintiffs lack standing to seek prospective relief foreither claim because they have not shown a credible threat of future prosecution.We also determine that the district court correctly dismissed the facial vaguenesschallenge because the pit bull ban is not vague in all its applications. However,taking the factual allegations in the complaint as true, the plaintiffs have plausiblyalleged that the pit bull ban is not rationally related to a legitimate governmentinterest. Accordingly, we conclude that the district court erred in dismissing thesubstantive due process claim insofar as the plaintiffs seek retrospective relief.Our jurisdiction arises under 28 U.S.C. 1291, and we dismiss in part, affirm inpart, reverse in part, and remand. 1 (...continued) animals banned by this ordinance as pit bulls. -3- 4. I ASection 8-55 of the Revised Municipal Code of the City and County ofDenver (the Ordinance) provides:Sec. 8-55. Pit bulls prohibited.(a) It shall be unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull.(b) Definitions. . . . (2) A pit bull, for purposes of this chapter, is definedas any dog that is an American Pit Bull Terrier,American Staffordshire Terrier, Staffordshire BullTerrier, or any dog displaying the majority of physicaltraits of any one (1) or more of the above breeds, or anydog exhibiting those distinguishing characteristics whichsubstantially conform to the standards established by theAmerican Kennel Club or United Kennel Club for any ofthe above breeds. The A.K.C. and U.K.C. standards forthe above breeds are on file in the office of the clerk andrecorder, ex officio clerk of the City and County ofDenver, at City Clerk Filing No. 89457.-4- 5. Denver, Colo., Rev. Mun. Code 8-55. 2 The Ordinance has both civil andcriminal components. Colo. Dog Fanciers, Inc. v. City & County of Denver, 820P.2d 644, 647 (Colo. 1991) (en banc). As a civil measure, the Ordinance allowsofficials to impound any pit bull found within the City and County of Denver(Denver or the City). 8-55(e); Colo. Dog Fanciers, 820 P.2d at 647. If adog is seized, an owner has the right to a post-seizure hearing at which Denvermust prove by a preponderance of the evidence that the dog is in fact a pit bull. 8-55(f); Colo. Dog Fanciers, 820 P.2d at 649 (citing Colo. Rev. Stat. 13-25-127). If the dog is found to be a pit bull, it will be destroyed unless the ownerpays the costs of impoundment and agrees to permanently remove the animal fromDenver. Colo. Dog Fanciers, 820 P.2d at 647 (citing Denver, Colo., Rev. Mun.Code 8-55(f)). 2 American Kennel Club (AKC) and United Kennel Club (UKC) standards were not attached to the complaint filed in the district court. However, because the Ordinance itself incorporates those standards by reference, we take judicial notice of them. See United States v. Williams, 442 F.3d 1259, 1261 (10th Cir. 2006). These standards are easily accessible on the internet. See American Kennel Club, Complete Breed List, http://www.akc.org/breeds/complete_breed_list.cfm (last visited May 12, 2009); United Kennel Club, Full List of UKC Breeds, http://www.ukcdogs.com/WebSite.nsf/WebPages/LrnBreedInfoFullList (last visited May 12, 2009). It appears that both the AKC and UKC periodically revise their breed standards, but it is unclear from the record whether Denvers Clerk and Recorder updates the standards on file in its office with every revision. Thus, where we quote from the breed standards in the course of this opinion, we rely on the versions of the standards attached as exhibits to the plaintiffs opening brief.-5- 6. Violating the Ordinance is also a criminal offense. 1-13(a) ([W]heneverany section of this Code or any section of a rule or regulation promulgatedhereunder requires, prohibits or declares to be unlawful the doing of any act, anyviolation of such section is hereby declared to be a criminal violation.); Colo.Dog Fanciers, 820 P.2d at 647-48. If the City chooses to pursue criminal chargesagainst a dog owner, it must prove a violation of the Ordinance beyond areasonable doubt. Colo. Dog Fanciers, 820 P.2d at 649; see In re Winship, 397U.S. 358, 364 (1970). An individual convicted of violating the Ordinance shall,for each offense, be fined in a sum not more than nine hundred ninety-nine dollars($999.00) or imprisoned not to exceed one (1) year, or both so fined andimprisoned. 1-13(a).Denver originally enacted the Ordinance in 1989. Colo. Dog Fanciers, 820P.2d at 646. Shortly after its enactment, a coalition of dog owners and humaneassociations challenged the constitutionality of the Ordinance in Colorado statecourt. Id. They alleged that the Ordinance deprived them of procedural dueprocess, substantive due process, and equal protection of the laws. Id. at 647.They also claimed that the ordinance was void for vagueness and amounted to anunconstitutional taking. Id. The Colorado Supreme Court rejected each of thesechallenges, id. at 650-54, and the Ordinance remained in force until April 2004.On April 21, 2004, then-Governor Bill Owens signed House Bill 04-1279,which prohibited Colorado municipalities from enacting breed-specific -6- 7. legislation. See Colo. Rev. Stat. 18-9-204.5(5)(a). Denver suspendedenforcement of the Ordinance in compliance with the new law and filed a lawsuitin state court seeking a declaratory judgment that the law violated home ruleprovisions of the Colorado Constitution. The state court ruled in favor of Denver,and the City resumed enforcement of the Ordinance on May 9, 2005. Accordingto the plaintiffs, Denver has impounded and killed at least 1,100 dogs sinceenforcement resumed. BBecause this case reaches us following Denvers successful motion todismiss, we assume the truth of all well-pleaded facts in the plaintiffs complaint.See Gann v. Cline, 519 F.3d 1090, 1091 (10th Cir. 2008). Under that standard,the facts are as follows. Each of the three named plaintiffs owns a dog she fearscould be seized or destroyed under the terms of the Ordinance. Sonya Dias is aformer resident of Denver who owns a dog named Gryffindor. When she learnedthat Denver was resuming enforcement of the Ordinance in 2005, Dias preparedto move out of the City. Ultimately, to avoid enforcement of the Ordinance, shesold her Denver loft and, at considerable expense, moved into a rented apartmentin Littleton, Colorado. She then joined with other dog owners and formed The PitBull BAND (an acronym for Breed Awareness, Not Discrimination). She hasplayed an active role in the organization and has assisted other dog owners whose -7- 8. animals have been seized by animal control officials. Dias does not allege thatshe plans to return to Denver with Gryffindor.Hilary Engel is also a former Denver resident and is the owner of a dognamed Cysco. On May 5, 2005, while Engel still resided in Denver, her then-boyfriend was stopped by a Denver animal control officer while taking Cysco ona walk. The officer told Engels boyfriend that he intended to seize Cysco oncethe Ordinance was reinstated. Engel took Cysco to the animal control office in aneffort to determine whether Cysco was a pit bull as defin