BY JEREMY DEVIN MCKAY
This article discusses criminal defense issues related to charges involving banned animal breeds.
A client calls your firm looking for a defense attorney. The client has been charged with several serious misdemeanors and was told that a felony charge is possible. The client is facing thousands of dollars in fines, thousands more in restitution, and jail time. You are told that among the charges this client faces are two counts of owning a dangerous dog and two counts of violating the local prohibition on owning certain dog breeds. The client's main concern, however, is making sure the dogs are not killed.
Practicing criminal defense attorneys may occasionally find themselves involved in the field of animal law because most animal-related laws are governed through criminal enforcement statutes. Charges for violating zoning restrictions, owning dangerous dogs or exotic animals, and animal cruelty all come with criminal penalties, some of which are serious. It is rare to encounter clients with charges for violating breed bans1 without additional charges, such as a dog at large or a dangerous dog, because individuals charged only with violating an ordinance for possessing a banned breed are inclined to handle their cases without legal representation.
This article discusses animal law cases that involve the additional element of possessing a banned breed. Such cases have a complicated and contentious origin and present numerous challenges for criminal defense attorneys.
The Evolution of Colorado Breed-Specific Legislation
The term "breed-specific legislation" (BSL) is a "blanket term for laws that either regulate or ban certain dog breeds in an effort to decrease dog attacks on humans and other animals."2 Colorado BSL started in Denver in 1989 and was enacted following two high-profile attacks that involved pit bulls. The first involved the death of a toddler, and the second concerned a minister who suffered dozens of bite wounds and two broken legs.3 The Denver ordinance that followed made it unlawful for any person to "own, possess, keep, exercise control over, maintain, harbor, transport, or sell within the City any pit bull,"4 and contained a licensing scheme that grandfathered in previously licensed pit bulls.5 But a "pit bull" is not, in fact, a breed of dog. Rather, it is an amalgamation of several different American Kennel Club-recognized breeds. The Denver ordinance thus defined a "pit bull" as:
any dog that is an American Pit Bull Terrier, American Staffordshire Terrier, Staffordshire Bull Terrier, or any dog displaying a 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.KC. 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. 89457.6
A group of animal welfare organizations swiftly filed suit against the city, challenging the constitutionality of the ban. However, in 1991, the Colorado Supreme Court ultimately held that the ordinance, as modified by the trial court, was constitutional.7 Therefore, the ban has remained in place and similar legislation has since expanded to other parts of the state. In 2004 the state enacted CRS § 18-9-204.5, a "ban on bans," attempting to end the use of BSL in Colorado. The statute states that "[n]othing 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”. The statute aims to target behaviors rather than breed identifications and to emphasize owner responsibility through increased fines and other penalties.
CRS § 18-9-204.5 was the subject of controversy among the City of Denver, private citizens, and animal welfare organizations. The City of Denver sought a declaratory judgment stating that its own ban was constitutional under this new state statute. Ultimately, in 2004 Denver's status as a "home rule" city factored into the court's declaratory judgment, which allowed the city to keep its ban in place and set a legal standard for other jurisdictions to continue to enact their own bans.9
Animal welfare organizations and several citizens challenged the existing Denver ban as unconstitutionally vague on its face and a deprivation of substantive due process under this new state statute, and the district court dismissed the case.10 The Tenth Circuit affirmed the dismissal of the vagueness claim but remanded for further proceedings on the substantive due process claim,11 which was subsequently dismissed with prejudice12 after a procedural victory by defendants.13
Opposition to BSL has not subsided, and on January 22, 2020, the Denver City Council introduced an ordinance that would modify the BSL to allow for the reintroduction of pit bulls under limited circumstances. The modification passed with a vote of 7 to 4.14However, the amending ordinance was ultimately vetoed by Mayor Hancock in the first exercise of his veto power since he took office in 2011.
Ongoing advocacy efforts to repeal BSL continue, and some Colorado jurisdictions have already rescinded their breed bans.16 Many prominent national organizations with experience in dog behavior support repealing breed bans,17 and even the American Bar Association (ABA) has urged all localities to repeal breed-specific provisions.18Given such opposition to BSL and the speed with which municipal governments can operate, practitioners should pay attention to their local government's legislative activities.
Complications Arising from Breed-Specific Legislation
The following are some of the most common issues that practitioners and their clients encounter in criminal defense cases involving BSL.
The foremost complication in BSL cases is impoundment fees, which are the costs a municipality or government-contracted agency incurs in taking and holding an animal at the center of an animal ordinance violation. Many defendants are precluded from engaging in detailed negotiations or proceeding to trial simply because they cannot afford to accrue hundreds or thousands of dollars in impound fees while those processes go on.
While these fees can be recoverable in cases where a defendant is acquitted of all charges, they must be paid upfront on weekly or monthly timetables, which can be difficult for many defendants. A failure to pay the impound costs results in the automatic forfeiture of the animal, regardless of whether the owner has been found guilty.19 Thus, a defendant may feel pressure to accept the first iteration of a plea offer simply to end the ongoing impound fees.
Moreover, unlike other animal-related crimes, BSL violation charges frequently carry increases to impound costs of as much as 100%. Denver's current standard impound fees for a dog are $55 dollars and $10 per day, but $100 dollars and $15 per day for a banned breed.20 A defendant with two impounded dogs that are both banned breeds can expect impound costs in excess of $1,000 dollars for the first month alone. These fees continue until the day the case ends.
Denver uniquely allows its animal control agencies the authority to reduce or waive impound fees due to financial hardship or other issues,21 but such actions are not always forthcoming.22And even if a client is entitled to a public defender, impound fee waivers or reductions are discretionary23and should not be expected.
The Knowledge Gap
Despite the history of BSL and the underlying...