Dog owners ask appeals court to revive challenge to Iowa city’s pit bull ban

(CN) — Pit bull owners urged a federal appeals court Thursday to resurrect their suit claiming their constitutional rights are violated by an Iowa city’s ordinance banning possession of the dogs within the city.

Counsel representing the dog owners argued before a three-judge panel of the Eighth Circuit that the city’s evidence of disproportional danger from pit bulls is not supported by science.

The city, meanwhile, told the judges it has evidence that pit bulls were responsible for more attacks and bites, which declined after the ordinance was passed.

Council Bluffs, a city of 62,000 on the state’s western border, passed an ordinance in 2005 that outlaws the possession or sale of pit bulls, which are described as “any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier,” or any dog with a majority of the physical traits of one more of those breeds.

Several owners of pit bulls sued the city in federal court claiming the ordinance violated their constitutional rights of due process and equal protection. The dog owners questioned the city’s statistics and the validity of the city’s use of visual inspections to determine whether a dog is a pit bull.

U.S. District Judge John Jarvey dismissed the suit on summary judgment, which the dog owners appealed to the Eighth Circuit, asking that the lower court decision be reversed and the case remanded for trial.

Attorney David Lopez of Husch Blackwell in Omaha, counsel for the dog owners, told the St. Louis-based appeals court the record in this case has overwhelming expert testimony there is no rational justification for enforcement of the ban.

U.S. Circuit Judge James Loken, a George H.W. Bush appointee, raised questions about separation of powers if the courts can override decisions by cities, and he posed a hypothetical of a public initiative on banning pit bull dogs.

“If the question came down to whether the owners are afraid of pit bulls, and they voted for a ban, and the people have spoken," the question is whether the courts can overrule that, Loken said. “I think it’s a legitimate question. Can the people say, ‘We don’t want your scary pets in our presence?’”

Even a ban approved in a public referendum should be open to challenge in court using scientific evidence, Lopez said. Otherwise, he argued, judicial rational basis review would be transformed into a rubber stamp.

Sara Bauer, assistant city attorney for Council Bluffs, said the city’s ordinance was prompted by evidence from city records that pit bulls are disproportionally responsible for more attacks. The city’s evidence and the science of dog breeds may not be precise, but she argued that is not the standard under rational basis review.

“There is some support for breed standards,” she said. “A behavior characteristic in a breed is heritable.” But while the science is in flux and much is not known, “We know setters set, retrievers retrieve, and fighting dogs fight partly due to behavior genetics.”

The dog owners argued in a brief filed with the Eighth Circuit that pit bulls are no more or less dangerous than other breeds of dog, that neither the breed nor its physical characteristics are predictive of a dog’s propensity to bite, and that the city’s use of visual inspections to identify dogs as pit bulls is inherently unreliable.

In its brief, the city argued that the “industry standard” defined in the ordinance as being established by the American Kennel Club or the United Kennel Club for identifying dogs is by using visual inspection and comparing the dog’s characteristics to published breed standards.

Other members of the panel included U.S. Circuit Judges Duane Benton, appointed by George W. Bush, and Jonathan Kobes, appointed by Donald Trump.

The judges did not indicate when they would issue a ruling.

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