DIAS 2009 PUBLISHED [click to see actual published decision]
Colorado Fed Appeals Court Revives BSL Case in Denver
We predict the following: Kory Nelson will not stand for his “law” to be lost in court. Before finding that BSL law, which has already been declared illegal in Colorado by the legislature, but where home rule cities can implement it anyway—-Kory Nelson would likely voluntarily change the ordinance in Denver. However, the case is so political that it’s hard to say how the judge will see it. A jury trial might find that the ordinance is not rational.
But the case was not allowed to move forward on every basis; the main cause of action on vagueness, was properly dismissed by the Federal Trial Court, according to the Federal Appeals Court (see page 21 on decision); the claim for prospective relief was properly denied because the Appeals Court said there was no credible threat of future prosectution [where several Plaintiffs moved from Denver and did not return]; but the claim for substantive due process was allowed; Appeals Court citing that the Federal Trial Court erred in dismissing the claim insofar as the Plaintiffs sought retrospective (past) relief. Specifically, the Appeals Court is allowing Plaintiffs to proceed to trial on the issue of whether or not the Denver ordinance (BSL) is rationally related to a legitimate state interest. (pg. 26 in decision)
The Appeals Court specifically stated (pg. 27) that the Plaintiffs contend there is a lack of evidence that pitbulls as a breed pose a threat to public safety or constitute a public nuisance, and that Plaintiffs specifically contend that breed bans sustained 20 years ago may have been justified by the then-existing body of knowledge, the state of science in 2009 is such that the bans are no longer rational.
We don’t think the bans were ever rational, but we do think a nuisance is not that difficult to prove for any dog. Barking is considered a nuisance, isn’t it? We should remember that in the Aurora, CO case, the Judge took the testimony which was uncorroborated, of several AC officers, and using only those allegations or opinions, found the Aurora ordinance to be rationally related—even though their own hard evidence showed the banned breeds accounted for less than 1.9% of severe injury. Even against the testimony of an expert who had worked with 80,000 (yes, 80,000) pitbull dogs. In other words, the court was saying just about any reason could be rationalized? Which was no different than finding Skeldon’s testimony to be enough to sustain a “vicious” finding for all pitbull types of dogs in Ohio.
Well, all of that has already been hashed out in the Tellings case before, yet the Supreme Court of Ohio said they did not care because they listened to the testimony of Tom Skeldon. So it would not be surprising to hear a re-hash of the same content, only maybe by a different person
Rumor has been that a dangerous dog provision had already been drafted sometime ago, just in case. Well, just in case is here now. And the other thing we predict? That H$U$ will influence the system to use DNA testing, which is currently not workable in the ordinance. If DNA was used to prove a dog is a pitbull (the ordinance categorizes mixed dogs, pitbull types, and pitbull “look alikes”, etc) where such DNA testing is often wrong in regard to such dogs—then dogs might not be banned, but could all be considered vicious.
That is the known path H$U$ plans to take, to declare all such dogs as potentially vicious. So is that better than banning dogs? We think it might end up getting more dogs killed, because more will be there to target openly.
In any event, the Plaintiffs may go to trial and end up proving there is no rational basis for the ordinance. That will take a lot of work, time, money, and evidence. After what we saw in the Aurora case (mentioned on page 28 of decision; noting that the Federal Trial Court denied the City of Aurora’s summary judgment )—we don’t envy the burden needed to win the case in Denver. The Colorado legislature was already convinced that BSL doesn’t work. Now that has to be proven in a city that has had BSL for 20 years.
[Note: re the Colorado Dog Fancier’s Case of almost 2 decades ago; a rational basis was allegedly shown at that trial; however these Plaintiffs are alleging that the elements of the Tellings case shows that such basis is not the case now. Randall Lockwood we believe, testified at the Dog Fancier’s case, and he now works for the ASPCA. It will be interesting to see what experts the Plaintiffs use.]