Breed Specific Legislaion, or BSL, is a subset of a larger set of laws aimed at regulating dangerous dogs. BSL developed as a reaction to the sense of a growing dog bite problem in communities (whether real or perceived). Advocates of BSL felt that the increased danger posed by certain breeds of dogs (namely pit bulls) necessitated a ban on ownership. This sometimes raises concerns in those communities over the legal legitimacy of breed-specific bans.
There is no question that dogs are subject to regulation by state and local governments. One of the first cases to deal with the regulation of dogs, Sentell v. New Orleans & Carrollton R.R., established early on that dogs are subject to the police power of state government. Police power is a term that loosely means government has the authority to make laws that protect the health, safety, and welfare of its citizenry. The case also established that people have property rights in their dogs under the 14th Amendment of the federal Constitution. However, because this property right is a “qualified right,” "[i]t is purely within the discretion of the legislature to say how far dogs shall be recognized as property."
Opponents of BSL typically recognize the government's right to regulate dogs, but disagree with the targeting of specific breeds. Thus, groups opposed to BSL often raise a number of legal arguments rooted in constitutional rights. There are generally two main constitutional challenges to breed ban: equal protection under law and due process. Under the equal protection argument, opponents of breed-specific laws claim that these laws unfairly single out owners of specific breeds of dogs. However, these challenges have been uniformly rejected by courts because ownership of dogs is not a fundamental right under the Constitution and the owners themselves do not represent a “suspect class” under law (e.g., a group of people that have immutable characteristics who have experienced historic discrimination). Since dog owners of breeds deemed inherently dangerous are not a suspect class, the breed-specific laws must only show a rational relationship to the different treatment of specific dog owners under the law. In other words, the municipalities usually only have to show the reason for discriminating against these owners is that evidence shows that pit bulls are a dangerous breed of dogs, and by banning them, citizens are protected from attacks. This minimum scrutiny test is a very easy test to pass.
Courts have also rejected arguments that because the law targets docile members of the pit bull breed in addition to aggressive ones, the law is unconstitutionally overinclusive. Essentially, a few bad apples spoil the bunch. Despite evidence that not all pit bulls are killers, BSL laws will still pass this test of overbreadth because it is easy for a municipality to prove that the bans are rationally related to the goal of protecting public safety.
Likewise, courts are also not persuaded that these laws are underinclusive. This argument suggests that BSL laws offend notions of equal protection because they do not include all breeds of dog that are potentially deadly. Again, a rational relationship will suffice to uphold the law. Courts have repeatedly ruled that, under the law, different evils require different means to address them; thus, because an ordinance only addresses one of these evils does not render it infirm or unconstitutional.
In addition to equal protection, BSL laws are also challenged for violating procedural due process. Due process is a concept based on the idea of fundamental fairness; before depriving an individual of life, liberty, or property, a court must grant the person notice of the proceedings and an opportunity to be heard at the proceedings. Sometimes BSL laws are challenged under procedural due process based on the definitions given under the ordinance. For example, the definition of “pit bull” in the statute or ordinance is challenged as vague or unclear. The person who owns the pit bull does not have sufficient notice that his or her conduct is against the law because the definition of “pit bull” is unclear. These challenges have been met with mixed results. Generally, however, where the standard by which a dog is judged to fit the breed’s characteristics are understandable, or where there is a hearing after impoundment to prove the dog is a pit bull, these laws will withstand scrutiny.
With this in mind, it should be noted that the breed ban in Denver was first unsuccessfully challenged in 1991 in Colorado Dog Fanciers v. City and County of Denver, Colorado, 820 P.2d 644 (Colo. 1991). (When examining an ordinance, it is always best to begin by looking at the language of the ordinance itself. An electronic version is available at http://www.denvergov.org/Portals/245/documents/855pitbull.PDF). The dog owners in this case claimed the ordinance was unconstitutional, violating their rights to procedural and substantive due process and equal protection, was also unconstitutionally vague, and constituted a taking of private property. As to due process, the court found the ordinance did not violate procedural due process where the ordinance is not fundamentally unfair and the burden of proof upon the dog owner in the civil context was valid. Agreeing with previous cases, the court did not find the ordinance overbroad in its classification of pit bulls as 'dangerous' nor was it vague, as it provided fair notice of the conduct circumscribed by ordinance. Moreover, with regard to equal protection, the court held that since ample evidence exists to establish a rational relationship between the city's classification of certain dogs as pit bulls and the legitimate governmental purpose of protecting the health and safety of the city's residents and dogs. As for taking, the court found the ordinance to be a valid police power exercise to protect the health and safety of the citizens since the evidence showed pit bulls to be inherently dangerous.
However, Denver’s BSL situation was complicated by the fact that the state legislature amended the state law in 2004 to prohibit municipalities from regulating dangerous dogs by breed:
5)(a) Nothing in this section shall be construed to prohibit a municipality from adopting any rule or law for the control of dangerous dogs; except that any such rule or law shall not regulate dangerous dogs in a manner that is specific to breed.
(b) Nothing in this section shall be construed to abrogate a county's authority under part 1 of article 15 of title 30, C.R.S., to adopt dog control and licensing resolutions and to impose the penalties set forth in section 30- 15-102, C.R.S.; except that any such resolution shall not regulate dangerous dogs in a manner that is specific to breed.
(c) No municipality or county may destroy or dispose of a dog that is awaiting destruction or disposition as of April 21, 2004, in connection with a violation or charged violation of a municipal or county ban on one or more specific dog breeds.
CO ST § 18-9-204.5.
As a result, the City and County of Denver filed a suit against the State for declaratory judgment, asking for a ruling that the regulation of pit bulls by Sec. 8-55 preempts the state law. In other words, the City wanted the court to say that the amended state law did not affect the previously enacted municipal ordinance. In late 2004, Denver County District Court Judge Martin Engelhoff ruled that Section 8-55 of the Denver Revised Municipal Code did not conflict with the state law because the regulation of which breeds of dogs are permitted or restricted in the city is purely an issue of local concern. Thus, under the concept of “home rule” authority, the city of Denver has the supreme authority to regulate matters that are of a local concern. The court viewed the regulation of dogs by breed in Denver as a matter of local concern. (Interestingly, the State of Colorado withdrew its appeal of this ruling). (To view a copy of this ruling, click here.)
Since the State withdrew its appeal of this issue, it has been thought that it more or less agreed with the lower court that home rule authority prevails on this issue. Only a Colorado licensed attorney can determine whether this ruling can again be challenged in court by bringing a different lawsuit against the ordinance.