Is Denver's Animal Murder Act Constitutional?
July 23, 2005
First, if there are any Colorado lawyers who want to challenge Denver's animal murder act, I'm volunteering my services pro bono. I'll consult, draft the pleadings or motions, or do whatever else needs done. Just e-mail me or leave a comment. Off the top of my head, I see two claims of relief under 42 U.S.C. Sec. 1983.
First, since the law doesn't cover a fundamental right, it would be subject to rational basis review. Even under rational basis review, the law would fail, since there's no way to classify "pit bulls." The city conceded this point. Since a non-classification isn't a classification under the EPC, the law would be irrational and thus, unconstitutional even under rational basis review.
Second, the law violates the dog owner's procedural due process rights. A post-deprivation hearing would never be adequate, since your dog would be dead by the time your property interest was deprived. The city would argue that there's no PDP issue, since there is a blanket ban on the dogs. See Conn. Dept. Public Saftey v. Doe. However, since the city officials are making on-the-spot determinations whether your dog "looks" like a pit bull (and thus will be murdered), and since the law can't rationally classify what a pit bull is, this argument must fail.
Thus, the general PDP issue raises this deep issue: What process is due? Here's how I would frame the issue: Given the unique role animals play in our life, and the emotional attachment pet owners have with their pets, does a city official's summary and unreviewable decision to kill a playful and friendly dog satisfy procedural due process?
Feel free to leave a comment with your own theories.
UPDATE: State court relief, absent a change in the law, would be precluded. Colorado Dog Fanciers v. City and County of Denver
Colorado, 820 P.2d 644 (Colo. 1991) (upholding nearly identical breed-specific legislation). Which is fine, since federal court is a better forum for civil rights violations. Besides, we'd need to stay away from those barbarians (yes, barbarians) on the Colorado Supreme Court:
[W]e rejected a procedural due process challenge to a dog leash ordinance by holding that a hearing to determine whether a dog was a nuisance was unnecessary before taking or disposing of the dog.... We therefore reverse the trial court's imposition of a pre-impoundment hearing.
Yes, the Colorado Supreme Court held that the city can, consistent with due process, kill your dog before giving you a hearing. Who knew Hannibal Lecter wore a robe?