Denver’s Holocaust: Call For An End To The Pit Bull Ban

Thousands of pit bulls and pit mixes have been evacuated from Denver since the city resumed enforcement of its controversial pit bull ban in May, 2005.

What is worse, a recent lawsuit claims at least 1,100 pit bulls and pit mixes have been killed since then as Denver tries to eliminate all pits from the city and county. Some estimates put the death toll much higher at at least 2,000 dogs.

There is no requirement any of the dogs must be dangerous or potentially dangerous. They are banned or killed simply because of their breed.

As the case of Margolius v Denver demonstrates, it is far from clear that animal control and other law enforcement agencies can identify pit bull mixes accurately. Dogs not covered by the ban may have lost their lives because of this vague, overreaching law. In the Margolius case it was proven animal control officers could not identify a “pit bull terrier” beyond a reasonable doubt under the Denver ordinance which includes along with the banned purebred "any dog displaying the majority of physical characteristics of any of these breeds".

As with most breed specific legislation Denver adopted its pit bull ordinance in response to injuries caused by dogs identified as pit bulls. In Denver’s case 2 attacks precipitated the passage of an ordinance banning all pit bulls. A copy of the Denver ordinance, Section 8-55 of the Denver Revised Municipal Code, can be found in Animal Law Coalition’s Laws.

On July 24, 1989, the Denver City Council introduced D.R.M.C. § 8-55 Pit bulls prohibited. The ordinance was passed on August 1, 1989 and signed by the mayor, Frederico Pena, the following day. Almost no time for debate and study or consideration of real solutions. Some amendments were later passed and the final ordinance went into effect October 27, 1989. The state Supreme Court has not yet had an opportunity to decide if the ban is constitutional.

Legal Challenges To The PIt Bull Ordinance

There have been lawsuits challenging the ordinance. In fact, the ordinance has been subject to litigation since it passed in 1989. Lawsuits were consolidated in the case of Colorado Dog Fanciers v. Denver were brought in Denver District Court. The plaintiffs sought an injunction against enforcement of the ordinance and a declaration the ordinance violated the plaintiff’s constitutional rights.

On June 28, 1990, the Denver District Court issued a written decision upholding Denver’s pit bull ordinance, stating, “This Court has no authority to substitute its own judgment regarding the wisdom, desirability or ultimate effectiveness of the Ordinance.”

The District Court found there was a rational basis for the differential treatment of pit bulls, stating: “It cannot be proven that pit bull dogs bite more than other dogs. However, there is credible evidence that pit bull dog attacks are more severe and more likely to result in fatalities.”

The District Court did find that the burden of proof under the ordinance was improperly placed on the dog owner and should be on the city. The plaintiffs filed an appeal of the District Court’s decision with the Colorado Supreme Court, and the City cross-appealed on the issue of the burden of proof in the civil administrative hearing.

On November 12, 1991, the Colorado Supreme Court upheld the constitutionality of the Denver ordinance. The decision is reported at 820 P.2d 644. The Court found the determination of whether the dog is a pit bull is litigated during a civil impoundment hearing; the city is not required to prove beyond a reasonable doubt the dog is a pit bull in that hearing. Nor can the finding be used in a criminal trial brought against the owner.

The Court also determined the owner is not entitled to a pre-impoundment hearing on the issue of whether the dog is a pit bull.

The Court agreed with the City that scientific evidence was not necessary for a finding that a dog is a pit bull. There is no violation, said the Court, of the right to substantive due process as a result of the use of unscientific evidence.

The Supreme Court rejected the ordinance was overbroad because it treated all pit bulls and substantially similar dogs as inherently dangerous. The court found the argument inapplicable. The Court pointed out simply because a government regulates one “hazard” does not mean it must address every danger. The court also rejected the ordinance was constitutionally vague. The court found the definition of “pit bull” gave dog owners enough warning to know whether they are violating the law.

With respect to the equal protection argument, the Court noted, “[P]it bull attacks, unlike attacks by other dogs, occur more often, are more severe, and are more likely to result in fatalities. The trial court also found that pit bulls tend to be stronger than other dogs, often give no warning signals before attacking, and are less willing than other dogs to retreat from an attack, even when they are in considerable pain. Since ample evidence exists to establish a rational relationship between the city’s classification of certain dogs as pit bulls, and since there is a legitimate governmental purpose of protecting the health and safety of the city’s residents and dogs, the trial court correctly concluded that the ordinance did not violate the dog owners’ right to equal protection of the laws.”

The Court also found the ordinance was not a taking without due process of law. The Court observed, “Even if it were assumed that dogs are property in the fullest sense of the word, they would still be subject to the police power of the State, and might be destroyed or otherwise dealt with, as in the judgment of the legislature is necessary for the protection of its citizens….Here, the legislative exercise of police power was legitimate since it was reasonably necessary to preserve and protect the public health, safety, and welfare”.

Home Rule

On April 21, 2004, Colorado Rev. Stat. §18-9-204.5(5)(b) became effective. Under that law Colorado municipalities and counties are prohibited from passing breed specific legislation. In the wake of this law Denver suspended enforcement of its pit bull ordinance.

Denver did, however, then file the case entitled City & County of Denver v. State of Colorado to challenge the new law prohibiting breed specific legislation. In City & County of Denver v. State of Colorado, the Court ruled the Denver ordinance, D.R.M.C. §8-552 which bans pit bulls, was not pre-empted by the passage of §18-9-204.5(5(b) and is valid under the State’s Home Rule Amendment, Art. XX of the Co. Constitution.

In other words, the new law banning BSL was held not to be the source of Denver’s authority to ban pit bulls; it was also held Denver has a right to pass and enforce ordinances on matters of local concern apparently regardless of state law.

The court did find the ordinance is invalid insofar as it restricts the inter-city transportation of pit bulls. People would be allowed to transport pit bulls from a place outside of Denver through the city as long as the dogs stayed in the vehicle.

The court in that case then held a hearing in April, 2005 on whether since the original 1990 ruling upholding the ordinance, there have been sufficient changes in the study of animal behavior that establish there is no rational basis to justify the pit bull ban.

At the conclusion of the evidence on April 7, 2005, Denver District Court Judge Martin Egelhoff issued an oral ruling from the bench. The Judge found that the State failed to provide new evidence to undermine the earlier ruling. The judge found the State failed to prove beyond a reasonable doubt there was no rational basis for the pit bull ban.

A Debate And Where The Ban Stands Now

On April 8, 2005, the City & County of Denver announced that it would resume enforcement of its pit bull ordinance beginning May 9, 2005. And it has enforced the ban since that time.

Colorado State Representative Debbie Stafford (R-40), who has long opposed the Denver pit bull ban, explained there was little point in pursuing an appeal at that time of the court’s ruling. She explained there was no enthusiasm in the Attorney General’s office for an appeal. She said opponents of the ban would have risked a loss with an appeal at that time in view of the attitude of the Attorney General’s office.

Thus, as it stands, the Colorado Supreme Court has never decided whether Co. §18-9-204.5(5(b), the anti-BSL law, pre-empts the State’s Home Rule Amendment, Art. XX of the Co. Constitution. The Colorado Supreme Court has never decided whether the District Court was correct in finding the Denver pit bull ban is constitutional.

Kory Nelson, Assistant City Attorney for the Denver City Attorney’s office is quoted, saying, “The fact we haven’t had fatal attacks in years indicates (the ban) may be working.” Mr. Nelson’s remark is interesting in that since 1986 there have been no dog-bite fatalities in Denver during periods when the city enforced the ordinance; neither have there been in Portland, Oregon or Dallas, Texas, both of which had a dog-bite fatality in 1986. Neither Portland or Dallas has enacted breed specific legislation.

Assistant City Attorney Nelson recently stated, “The only pit bulls that are humanely euthanized are those that are either abandoned by their owner or are intentionally returned to Denver by a repeat offender. Clearly, these situations are only the fault of the owner. Who would intentionally return large numbers of pit bulls, or even one, to our community, knowing the consequences, both as to their criminal prosecution and the destruction of these pit bulls? Dog fighters who intentionally breed and train their pit bulls for aggressive behaviors that then make these pit bulls too dangerous to interact with other domesticated pets or humans. Who is to blame – these individuals with the intent of using these dogs for illegal acts, including the ultimate acts of cruelty – dog fighting! But according to the HSUS, in 2005, the largest cash prize at a dog fighting tournament was approximately $500,000.00 – there is a large economic incentive for these dog fighters to continue to use the best bred dogs for fighting – the pit bull.”

Click here for more on a current lawsuit pending against Denver that challenges the ban. 

 Contact Denver officials and let them know it’s time to repeal the pit bull ban! Click here to find names and contact information for the mayor and council members.