Summary of a Recent
Judicial Development in
Animal Welfare

Plaintiffs Bring Due Process Challenge against Pit Bull Ban

Walt McCarter
National AgLaw Center Research Associate

Summary of Decision

In Dias v. City and County of Denver, 567 F.3d 1169, 2009 WL 1490359 (10th Cir. 2009), the United States Tenth Circuit Court of Appeals held that the plaintiffs had alleged sufficient facts to sustain their substantive due process claim challenging a city ordinance banning pit bulls.

Background

The plaintiffs challenged a Denver city ordinance banning pit bulls, arguing that it was unconstitutionally void for vagueness and that it deprived them of substantive due process. Id. at *1. The district court granted the city's motion to dismiss, and the plaintiffs appealed. Id.

Arguments

The plaintiffs argued that "the human/companion animal bond is a fundamental liberty interest," and because the ordinance was not narrowly tailored to serve a compelling government interest, it violated their substantive due process rights. Id. at *8. Alternatively, they argued that the ordinance irrationally treated pit bulls and their owners differently than other dogs and owners because there was a lack of evidence that pit bulls posed a threat to public safety or constituted a public nuisance. Id.

Analysis and Holdings

The court found that because the plaintiffs had moved out of the city to avoid the pit bull ban and had not alleged that they planned on returning, there was no "credible threat of future prosecution," and therefore the plaintiffs lacked standing to seek prospective relief. Id. at *4-5. The court concluded that the plaintiffs had standing to seek retrospective relief, however, because they had been forced to move from the city to avoid the ordinance, and one plaintiff had been charged with a criminal violation of the ordinance. Id. at *5. The court found that the ordinance was not "vague in all of its applications," and thus affirmed dismissal of the plaintiffs' facial vagueness challenge. Id. at *8. As to the substantive due process claims, the court found that the plaintiffs had failed to plead sufficient facts in support of their assertion that the human/pet bond was a fundamental liberty interest, and declined to apply a strict scrutiny analysis. Id. at *9. The court concluded, however, that the plaintiffs had set forth sufficient facts to apply the rational basis analysis to the ordinance (i.e., whether the ordinance is rationally related to a legitimate government interest). Id. at *10. Therefore, the court reversed the district court's dismissal and remanded for further proceedings. Id. at *11.

The case was decided on May 27, 2009.