Court Revives Challenge to Denver Pit Bull Ban

(CN) - The 10th Circuit partially revived a class action challenging Denver's ban on pit bulls, saying dog owners might be able to prove that the ban irrationally targets a breed that's not as dangerous as the city thinks.

The ordinance allows Denver officials to impound any pit bull within the city or Denver County. The dogs, generally considered an aggressive breed, are to be put down unless the owner pays the costs of impoundment and agrees to permanently remove the animal from the city.

Violators also face criminal charges that carry a maximum fine of $999 and up to one year in prison.

The city temporarily suspended the ordinance in 2004, after then-Gov. Bill Owens signed a bill barring Colorado municipalities from banning certain breeds.

But Denver successfully defended the ordinance, claiming the governor's law violated home-rule provisions of the state Constitution. It resumed enforcing the ordinance in May 2005, and has since impounded and killed at least 1,100 dogs, according to opponents of the ban.

Three pit bull owners filed a class action against the city, seeking to overturn the ordinance on constitutional grounds. The district court upheld the ban as clear and justifiable.

The Denver-based federal appeals court said it couldn't grant prospective relief, because the three lead plaintiffs no longer live in Denver. Two moved to avoid having their dogs seized; the third was criminally charged with violating the ordinance.

However, Judge Lucero reinstated substantive due process claims that were based on past injuries. The plaintiffs had argued that the ban is irrational, because there isn't enough evidence that pit bulls are dangerous or constitute a public nuisance.

"Although the plaintiffs may be unable to demonstrate through evidence that the ordinance is irrational, the complaint makes out a claim for relief," Lucero wrote.

This rational basis test falls between the standards urged by both parties. The plaintiffs claimed that the bond between a man and his pet is a "fundamental liberty interest" that triggers strict scrutiny analysis.

On the other end, Denver argued that the constitutionality of the ordinance should be judged by whether it "shocks the conscience" of federal judges.

The court applied neither standard.

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