Danker v. City of Council Bluffs, Iowa

• Decision Date: 29 October 2021
• Docket Number: 1:20-cv-00016-JAJ-SHL
• Parties: Rachael DANKER, Jesse Johnson, Samantha Johnson, Stephanie Nelson, Aubrey Wilhite, Don Williams, and Julie Williams, Plaintiffs, v. The CITY OF COUNCIL BLUFFS, IOWA, Defendant.
• Court: U.S. District Court — Southern District of Iowa

569 F.Supp.3d 866

Rachael DANKER, Jesse Johnson, Samantha Johnson, Stephanie Nelson, Aubrey Wilhite, Don Williams, and Julie Williams, Plaintiffs,

v.The CITY OF COUNCIL BLUFFS, IOWA, Defendant.

No. 1:20-cv-00016-JAJ-SHL

United States District Court, S.D. Iowa, Western Division.

Signed October 29, 2021

Ryann A. Glenn, Amanda L. Wall, Pro Hac Vice, Kamron Thomas Mitchell Hasan, Pro Hac Vice, V. Gene Summerlin, Pro Hac Vice, Husch Blackwell LLP (Omaha), Omaha, NE, for Plaintiffs Rachael Danker, Jesse Johnson, Samantha Johnson, Stephanie Nelson, Aubrey Wilhite, Don Williams, Julie Williams.

Sara E. Bauer, Council Bluffs City Attorneys Office, Council Bluffs, IA, for Defendant.

OPINION AND ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN A. JARVEY, Chief Judge

Current, former, and prospective owners of dogs identified as "pit bulls" challenge the constitutionality of a municipal ordinance banning such animals from the city. Their challenge is now before the court on the city's September 10, 2021, Motion For Summary Judgment [Dkt. No. 40]. The dog owners filed their Brief In Opposition To Defendant's Motion For Summary Judgment [Dkt. No. 45] on October 1, 2021, and the city filed its Reply In Support Of Motion For Summary Judgment [Dkt. No. 50] on October 8, 2021. For the reasons set forth below, the city's September 10, 2021, Motion For Summary Judgment [Dkt. No. 40] is GRANTED .

I. INTRODUCTION

A. Factual Background

This statement of the factual background is drawn from the parties' statements of purportedly "undisputed" facts in support of and resistance to summary judgment. Unfortunately, few of the facts that the parties allege appear to be undisputed. Also, the court finds that many of their factual allegations are irrelevant or immaterial or are legal conclusions or legal arguments. Hence, gleaning genuine issues of material fact from the parties' submissions has presented the court with some challenges. See, e.g., Villanueva v. City of Scottsbluff , 779 F.3d 507, 510 (8th Cir. 2015) (" ‘Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.’ " (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) )). Despite these challenges, the court provides this factual background focusing on facts or factual disputes that the court finds are material in the present case. Unless otherwise indicated, the facts that follow are undisputed. The court has not necessarily offered the facts in precisely the form the parties offered them. Instead, where possible, the court has limited or rephrased the parties' statements to avoid language that appears to the court to be the basis for an opposing party's objection.

1. The ordinance at issue

Central to this lawsuit is an ordinance of the defendant City of Council Bluffs that originally became effective on January 1, 2005, identified as Ordinance 5821 and codified at Council Bluffs Municipal Code (CBMC) § 4.20.112. See Pls.' App., 15-17. The ordinance provides, "It shall be unlawful for any person to own, possess, keep, exercise control over, maintain, harbor, transport or sell within the city of Council Bluffs, Iowa any pit bull." CBMC § 4.20.112(a).

The "definitions" portion of the ordinance provides in pertinent part as follows:

A "pit bull" for purposes of this section, 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 (more so than any other breed), 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 director of public health.

CBMC § 4.20.112(b)(2).

A violation of the ordinance may be treated as a municipal infraction, subject to a scheduled fine, see CBMC §§ 1.95.010, 1.95.020(B), Pls.' App. at 73; by impoundment and an administrative proceeding, which includes a procedure to dispute the classification of such dog as a pit bull, see CBMC §§ 4.20.112(f), Pls.' App. at 39; or by seizure, impoundment, and a misdemeanor citation, see CBMC § 4.20.010(a), Pls.' App. at 21, which could subject a defendant to penalties pursuant to IOWA CODE § 903.1, see CBMC § 8.02.020, Pls.' App. at 75. The ordinance also provides for destruction of such animals, as follows:

Notwithstanding any provisions to the contrary, the director of public health is authorized to immediately impound any pit bull found in the city of Council Bluffs which does not fall within the exceptions listed in subsection (c) above, and the Council Bluffs Animal Shelter may house or dispose of such pit bull in such manner as the director of public health may deem appropriate, except as the procedures in subsection (f) below otherwise require.

CBMC § 4.20.112(e), Pls.' App. at 16.

Finally, for present purposes, the ordinance provides a procedure to challenge the classification of a dog as a pit bull, as follows:

When the director of public health has impounded any pit bull dog pursuant to this section, and the owner of such dog disputes the classification of such dog as a pit bull, the owner of such dog may file a written petition with the director of public health for a hearing concerning such classification no later than seven (7) days after impoundment. Such petition shall include the name and address, including mailing address, of the petitioner. The director of public health will then issue a notice of hearing date by mailing a copy to the petitioner's address no later than ten (10) days prior to the date of the hearing. When no written request from the owner for a hearing is received by the director of public health within seven (7) days of impoundment, the pit bull shall be humanely destroyed.

The hearing, if any, will be held before the director of public health or a hearing officer designated by the director. The appellant-owner of such dog shall bear the burden of proof. Any facts that the petitioner wishes to be considered shall be submitted under oath or affirmation, either in writing or orally at the hearing. The director of public health or hearing officer shall make a final determination whether the dog is a pit bull as defined in subsection (b)(2) of this section. Such final determination shall be considered a final order of the director of public health subject to review as provided in Section 4.20.132.

If the dog is found to be a pit bull, it shall be humanely destroyed, unless the owner produces evidence deemed sufficient by the director of public health that the pit bull is to be permanently taken out of Council Bluffs, and the owner pays the cost of impoundment. If the dog is found not to be a pit bull, the dog shall be released to the owner.

The procedures in this subsection shall not apply, and the owner is not entitled to such a hearing with respect to any dog that was impounded as the immediate result of an attack or bite. In those instances, the dog shall be handled, and the procedures governed by the provisions of Section 4.20.120.

CBMC § 4.20.112(f), Pls.' App. at 16-17.

The most recent reenactment of the ordinance, in Ordinance 6387, contains no or only minor, non-substantive, editorial changes to these provisions. See Pls.' App. at 37-39.

2. Genesis and effect of the ordinance

The parties agree that dog bites are a public health issue. According to the affidavit of the current mayor of Council Bluffs, who was a city council member at the time, Council Bluffs had encountered increased reports of dog bites and some reports regarding threats to persons and animals in Council Bluffs, reportedly due to pit bull dogs, in the years preceding 2004. He also averred that, while there were no fatalities to humans, there were some serious injuries, and there were several animal fatalities. The dog owners dispute the mayor's affidavit on foundation grounds, but the court overrules that objection. Similarly, the dog owners dispute the adequacy and accuracy of any visual identifications of the dogs involved in the purported incidents in Council Bluffs, but that objection does not change the perception of city council members, at the time, that pit bulls were involved. The city alleges that, in 2003, Animal Control began compiling records concerning animal control, including maintenance of logs and complaint responses, impoundment/quarantine and medical records, licensing records, and other animal control data, such as complaints, dog bite tracking, licenses, and breed complaints. The dog owners dispute the accuracy of such records to the extent that they relied on visual identification of breeds of dogs involved.

The city alleges that, based on records gathered, maintained, and collated by Council Bluffs Animal Control, in Council Bluffs in 2003, approximately 2.9% of the licensed dog population consisted of pit bull dogs, but pit bull dogs were reported as being responsible for 12.4% of the dog bites reported to Animal Control. In 2004, the licensed dogs registered as pit bulls accounted for only 2.3% of the total number of licensed dogs, but as reported to Animal Control, pit bulls accounted for 22.1% of the total number of reported bites in Council Bluffs. Thus, the city contends that, in 2004, the city's records suggested that pit bulls were disproportionately responsible for dog bites in the city, accounting for almost ten times as many bites as should have occurred based on the licensed number of pit bulls. In contrast, Labrador retrievers represented approximately 11% of the licensed population, and accounted for 11% of the dog bites. The dog owners dispute these statistics, because of what they contend are the...