Update Nov. 27, 2008: U.S. District Judge Wiley Y.Â Daniel has ruled in favor of the city of Aurora, Colorado after a trialÂ on the constitutionality of theÂ city’s breed ban.Â
Yet, the evidence at trial revealed only 1.9% of bites in the city were from the restricted breeds. The city offered no real evidence that the ban is rationally related to a legitimate government interest in protecting citizens or that it is necessary for their protection.Â
The city’s witnesses said only that the restricted breeds were "destructive" in the animal shelter: animal control officers spoke of a fence knocked down once at the shelter and aÂ fight between two restricted breeds on another occasion.Â Â There was a muddled story of how an animal control officer tried to run overÂ 2 restricted breeds because they were running and banged into the truck. Â In another story a restricted breed scratched a child and then later when animal control came to the home, bit the officer. The officer at the time did not even think the dog was dangerous and blamed the owner.Â
If thisÂ evidence is enough to justify a breed ban, no dog is safe.
For more on the types of breeds banned and the ordinance, read Animal Law Coalition’s earlier report below.Â Â
Original report: The city of Aurora is headed to trial in the federalÂ district court for Colorado to defend its ban on a number of breeds.
Aurora bans any "pit bull" or "restricted breed of dog" defined to include American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, American bulldogs, Dogo argentinos, canary or presa canario dogs, presa mallorquins, tosa inu, cane corso, or fila brasileiro. The ban includes dogs that display the "majority of the physical traits" of these breeds or "distinguishing characteristics that substantially conform" to AKC or UKC breed standards. Click here for a copy of the ordinance.Â Â Â Â Â Â
Florence Vianzon and American Canine Foundation filed suit, challenging the constitutionality of the Aurora breed bans. Vianzon owns a pit bull mix.
The city moved for summary judgment, and U.S. District Court Judge Wiley Daniel has ruled two of the claims should not be dismissed. The judge found (1) The cityÂ presented no evidence to support that the breed ban is rationally related to a legitimate government interest, meaning there is no proof the ordinance outlawing the owning of certain breeds of dogs protects the safety of Aurora’s citizens, and (2) There was no evidence the taking of the dogs is a legitimate exercise of the city’s power because the city failed to prove it is necessary for the safety of residents.
The issue at trial will be whether there is a rational basis for the city to have passed a ban to protect the public from "pit bulls". The city will be required to show pit bulls are a threat to public safety. Â Â Â Â
The plaintiffs also argued that "the definition and identification of restricted breed animals is unconstitutionally vague and overbroad." Plaintiffs said authorities could not properly identify "pit bull terriers" or "restricted breed dogs" and were likely to enforce the ordinance arbitrarily and capriciously, for example, impounding mis-identified dogs.
The judge dismissed this claim, relying principally on an earlier Colorado case, Colorado Dog Fanciers v. City of Denver, 820 P.2d 644 (Colo. 1991) …. "’The court in that case rejected a vagueness challenge, stating that it "did not agree with the dog owners’ argument that the term â€˜pit bull’ is imprecise and, thus, unconstitutionally vague because the average dog owner is not afforded fair warning of the act prohibited by the ordinance.’…Â The court also stated, ‘[t]he fourteenth amendment due process guarantee against vagueness requires that laws provide fair warning to persons of ordinary intelligence of the conduct prohibited, and standards to protect against arbitrary and discriminatory enforcement. …Â Although the United States Constitution requires adequate notice of unlawful acts, it does not require the language of a legislative enactment to be mathematically precise. . . .Legislation is entitled to a presumption of constitutionality and is not â€˜automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within [its] language.’"
"’Since the standards for determining whether a dog is a pit bull are readily accessible to dog owners, and because most dog owners are capable of determining the breed or phenotype of their dog….[T]the ordinance’s hearing procedure, as construed with the burden properly placed on the city to prove pit bull status, provides a sufficient safeguard to avoid arbitrary application of the law.’"
Judge Daniel said the determination that a dog is a pit bull does not need to be made with mathematical certainty.
The judge also rejected the ordinance was overbroad in treating all pit bulls as inherently dangerous. The judge pointed to a Washington case, American Dog Owners Ass’n v. City of Yakima, 777 P.2d 1046, 1047-49 (Wash. 1989) in which the" Washington Supreme Court found an ordinance constitutional even though some inoffensive pit bulls might be banned, stating, ‘[o]verbreadth is only a problem when it â€˜reaches a substantial amount of constitutionally protected conduct.’…Dogs are subject to police power and may be destroyed or regulated to protect citizens…. Thus, â€˜property in dogs is of an imperfect or qualified nature’. . . and â€˜a harmless or inoffensive American Pit Bull Terrier may be banned in order to abate the threat … presented by other American Pit Bull Terriers.’" Â