Dias v. City and County of Denver

• Decision Date: 27 May 2009
• Docket Number: No. 08-1132.,08-1132.
• Citation: 567 F.3d 1169
• Parties: Sonya DIAS; Hilary Engel; and Sheryl White, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER; John W. Hickenlooper, individually and in his official capacity; Nancy Severson, individually and in her official capacity; Doug Kelly, individually and in his official capacity; and Juan Zalasar, individually and in his official capacity, Defendants-Appellees. Humane Society of the United States; Animal Legal Defense Fund; and American Society for the Prevention of Cruelty to Animals, Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

567 F.3d 1169

Sonya DIAS; Hilary Engel; and Sheryl White, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, v. The CITY AND COUNTY OF DENVER; John W. Hickenlooper, individually and in his official capacity; Nancy Severson, individually and in her official capacity; Doug Kelly, individually and in his official capacity; and Juan Zalasar, individually and in his official capacity, Defendants-Appellees.

Humane Society of the United States; Animal Legal Defense Fund; and American Society for the Prevention of Cruelty to Animals, Amici Curiae.

No. 08-1132.

United States Court of Appeals, Tenth Circuit.

May 27, 2009.

Steven S. Rosenthal (Alan K. Palmer; Karen R. Breslin, Progressive Law Center, LLC; and Michael F. Swick, American Kennel Club with him on the briefs), Kaye Scholer LLP, Washington, D.C., for the Plaintiffs-Appellants.

Michael J. Joyce (John M. Eckhardt and Stuart L. Shapiro with him on the briefs), Office of the City Attorney, Denver, CO, for the Defendants-Appellees.

James W. Hubbell, Kelly, Garnsey, Hubbell & Lass LLC, Denver, CO, and Ethan Carson Eddy and Jessica Culpepper, of Counsel, The Humane Society of the United States, Washington, D.C., filed an Amicus Curiae brief for the Humane Society of the United States in support of Plaintiffs-Appellants.

Megan A. Senatori, DeWitt Ross & Stevens, S.C., Madison, WI, filed an Amicus Curiae brief for the Animal Legal Defense Fund, in support of Plaintiffs-Appellants.

Debora M. Bresch, American Society for the Prevention of Cruelty to Animals, New York, New York, filed an Amicus Curiae brief for the American Society for the Prevention of Cruelty to Animals, in Support of Plaintiffs-Appellants.

Before TACHA, EBEL, and LUCERO, Circuit Judges. LUCERO, Circuit Judge.

LUCERO, Circuit Judge.

We consider a constitutional challenge to a Denver city ordinance banning a category of dogs commonly known as "pit bulls."¹ Sonya Dias, Hilary Engel, and Sheryl White allege that the pit bull ban violates the Fourteenth Amendment because it: (1) is unconstitutionally vague on its face; and (2) deprives them of substantive due process. Before the plaintiffs had any opportunity to present evidence to support their claims, the district court dismissed both claims under Federal Rule of Civil Procedure 12(b)(6). On appeal, the plaintiffs argue that the district court erred by prematurely dismissing the case at the 12(b)(6) stage. We agree in part.

We conclude that the plaintiffs lack standing to seek prospective relief for either claim because they have not shown a credible threat of future prosecution. We also determine that the district court correctly dismissed the facial vagueness challenge because the pit bull ban is not vague in all its applications. However, taking the factual allegations in the complaint as true, the plaintiffs have plausibly alleged that the pit bull ban is not rationally related to a legitimate government interest. Accordingly, we conclude that the district court erred in dismissing the substantive due process claim insofar as the plaintiffs seek retrospective relief. Our jurisdiction arises under 28 U.S.C. § 1291, and we dismiss in part, affirm in part, reverse in part, and remand.

I

A

Section 8-55 of the Revised Municipal Code of the City and County of Denver ("the Ordinance") provides:

Sec. 8-55. Pit bulls prohibited.

(a) It shall be unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the city any pit bull.

(b) Definitions....

(2) A "pit bull," for purposes of this chapter, is defined as any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying the majority of physical traits of any one (1) or more of the above breeds, or any dog exhibiting those distinguishing characteristics which substantially conform to the standards established by the American Kennel Club or United Kennel Club for any of the above breeds. The A.K.C. and U.K.C. standards for the above breeds are on file in the office of the clerk and recorder, ex officio clerk of the City and County of Denver, at City Clerk Filing No. 89457.

Denver, Colo., Rev. Mun.Code § 8-55.² The Ordinance has both civil and criminal components. Colo. Dog Fanciers, Inc. v. City & County of Denver, 820 P.2d 644, 647 (Colo. 1991) (en banc). As a civil measure, the Ordinance allows officials to impound any pit bull found within the City and County of Denver ("Denver" or "the City"). § 8-55(e); Colo. Dog Fanciers, 820 P.2d at 647. If a dog is seized, an owner has the right to a post-seizure hearing at which Denver must prove by a preponderance of the evidence that the dog is in fact a pit bull. § 8-55(f); Colo. Dog Fanciers, 820 P.2d at 649 (citing Colo.Rev.Stat. § 13-25-127). "If the dog is found to be a pit bull, it will be destroyed unless the owner pays the costs of impoundment and agrees to permanently remove the animal from Denver." Colo. Dog Fanciers., 820 P.2d at 647 (citing Denver, Colo., Rev. Mun.Code § 8-55(f)).

Violating the Ordinance is also a criminal offense. § 1-13(a) ("[W]henever any section of this Code or any section of a rule or regulation promulgated hereunder requires, prohibits or declares to be unlawful the doing of any act, any violation of such section is hereby declared to be a criminal violation."); Colo. Dog Fanciers, 820 P.2d at 647-48. If the City chooses to pursue criminal charges against a dog owner, it must prove a violation of the Ordinance beyond a reasonable doubt. Colo. Dog Fanciers, 820 P.2d at 649; see In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). An individual convicted of violating the Ordinance "shall, for each offense, be fined in a sum not more than nine hundred ninety-nine dollars ($999.00) or imprisoned not to exceed one (1) year, or both so fined and imprisoned." § 1-13(a).

Denver originally enacted the Ordinance in 1989. Colo. Dog Fanciers, 820 P.2d at 646. Shortly after its enactment, a coalition of dog owners and humane associations challenged the constitutionality of the Ordinance in Colorado state court. Id. They alleged that the Ordinance deprived them of procedural due process, substantive due process, and equal protection of the laws. Id. at 647. They also claimed that the ordinance was void for vagueness and amounted to an unconstitutional taking. Id. The Colorado Supreme Court rejected each of these challenges, id. at 650-54, and the Ordinance remained in force until April 2004.

On April 21, 2004, then-Governor Bill Owens signed House Bill 04-1279, which prohibited Colorado municipalities from enacting breed-specific legislation. See Colo.Rev.Stat. § 18-9-204.5(5)(a). Denver suspended enforcement of the Ordinance in compliance with the new law and filed a lawsuit in state court seeking a declaratory judgment that the law violated home rule provisions of the Colorado Constitution. The state court ruled in favor of Denver, and the City resumed enforcement of the Ordinance on May 9, 2005. According to the plaintiffs, Denver has impounded and killed at least 1,100 dogs since enforcement resumed.

B

Because this case reaches us following Denver's successful motion to dismiss, we assume the truth of all well-pleaded facts in the plaintiffs' complaint. See Gann v. Cline, 519 F.3d 1090, 1091 (10th Cir.2008). Under that standard, the facts are as follows. Each of the three named plaintiffs owns a dog she fears could be seized or destroyed under the terms of the Ordinance. Sonya Dias is a former resident of Denver who owns a dog named Gryffindor. When she learned that Denver was resuming enforcement of the Ordinance in 2005, Dias prepared to move out of the City. Ultimately, to avoid enforcement of the Ordinance, she sold her Denver loft and, at considerable expense, moved into a rented apartment in Littleton, Colorado. She then joined with other dog owners and formed The Pit Bull BAND (an acronym for Breed Awareness, Not Discrimination). She has played an active role in the organization and has assisted other dog owners whose animals have been seized by animal control officials. Dias does not allege that she plans to return to Denver with Gryffindor.

Hilary Engel is also a former Denver resident and is the owner of a dog named Cysco. On May 5, 2005, while Engel still resided in Denver, her then-boyfriend was stopped by a Denver animal control officer while taking Cysco on a walk. The officer told Engel's boyfriend that he intended to seize Cysco once the Ordinance was reinstated. Engel took Cysco to the animal control office in an effort to determine whether Cysco was a pit bull as defined in the Ordinance. Following that evaluation, an animal control officer informed Engel that although Cysco was beautiful and friendly, the dog looked too much like a pit bull to remain in Denver. The officer allowed Engel forty-eight hours to remove Cysco from within City limits. Engel temporarily placed Cysco in a shelter outside Denver and eventually moved to Lakewood, Colorado, to seek refuge from the Ordinance. Engel spent more than $5,000 and forfeited the security deposit on her Denver apartment in the process. Like Dias, Engel does not allege that she and Cysco plan to move back to Denver.

Sheryl White, the third named plaintiff, is also a former resident of Denver who fears that her dog, Sherman, falls within the ambit of the pit bull ban. On December 15, 2005, Sherman was seized by an animal control officer responding to a report by a neighbor that White owned a pit bull. In addition to the seizure, a criminal summons was issued to White. Animal control officials impounded Sherman until December 23, 2005. At that point, White was allowed to retrieve Sherman on the condition that White remove the dog from Denver. White complied, and from that date until January 1, 2006, she lived with Sherman at her employer's office in Littleton.

Pursuant to § 8-55(f) of...