UPDATE: The ordinance to replace Denver's breed ban with restrictions (mandatory spay/neuter, arbitrary inspections among other items) PASSED the City Council's vote on February 10, but was vetoed by City Mayor Hancock on February 14. An emotional roller coaster ride with a disappointing outcome.
In a phone call with our legal counsel on February 10, Denver's city attorney office confirmed that registering your pit bull with the city implies full consent to any and all unannounced, warrantless but 'reasonable' searches (ie, 'inspections') of private property. They would not elaborate on what 'reasonable' means or how inspections would play out.
On Monday Feb 10, the Denver City Council will be voting whether to approve an ordinance that would allow dogs labeled as 'pit bulls' to live in the city with a breed-restricted license.
City Council Member Christopher Herndon and others have worked very hard on this ordinance and many are understandably encouraged and hopeful. Initially, we were too, but two provisions stand out as especially harmful to families and we feel obligated to address them in advance of the vote.
1. Proposed provision section 14(4) allows animal welfare officers to enter private homes and businesses for unannounced inspections (see below*) As it is currently written, it requires no warrant and no standard for the application of a warrant.
The Constitution’s Fourth Amendment protects all Americans from unreasonable warrantless searches of their homes and private property. The basic purpose of this Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. Denver's proposed provision is unconstitutional and violates the basic premise of the Fourth Amendment.
The US Supreme Court has clearly held that administrative searches of a private or personal home or residence are significant intrusions involving Fourth Amendment jurisprudence. Camara v. City and County of San Francisco, 387 U.S. 523, 530-34 (1967). As such, they require issuance of a warrant before a search is allowed. And any such warrant must be supported by probable cause. Id. at 538-39.
Most importantly, this provision leaves pit bull owners in the dark. They have "no way of knowing whether enforcement of the municipal code involved requires inspection of his premises, no way of knowing the lawful limits of the inspector's power to search, and no way of knowing whether the inspector himself is acting under proper authorization." Id. at 732.
With a lengthy, painful and well documented history of seizing and euthanizing family pets, Denver has to do better. Even where communities enjoy a good relationship with regulators, a warrant requirement helps ensure that relationship stays strong. A warrant requirement means that a judge signs off on searches as a check against harassment and abuse by well-intentioned but overzealous individual animal welfare officers in addition to neighbors who may harbor a breed bias and ill will against neighboring dog owners.
Citizens should not have to choose between their dog and their constitutional rights.
We've flagged these concerns to all of Denver's City Council members and staff in an email early last week, and more recently to the city attorney office, with no response.
Mandatory Spay/Neuter Requirement
2. The second concern caught us by surprise. It's a recently added mandatory spay/neuter requirement for dogs labeled as pit bulls. Denver law currently requires dogs over six months old to be S/N unless their owner purchases a special permit to opt out, giving families an opportunity to do their research, speak with their veterinarians and make a decision that they feel comfortable with. While many can argue that S/N is a good decision for any breed type of dog living in densely populated urban settings especially, families who don't understand S/N and/or who have financial obstacles and/or unaddressed fears, concerns or religious or cultural objections to the surgery will clearly be discouraged from registering their dogs and will continue to hide them away to avoid compliance.
In the interest of engaging the public in important conversations about spaying and neutering pets, this ordinance needs to allow pit bull owners the same opportunity to make informed decisions that other dog owners in Denver currently enjoy.
THERE'S STILL TIME to make important improvements to the ordinance before its final vote on Monday. We encourage Denver residents to take these concerns to their City Council members and ask for changes that insure your rights are upheld.
*14(4) Notwithstanding section 8-4(c), animal protection officers shall be permitted access at reasonable
15 times and in a reasonable manner to inspect the pit bull and/or the premise where the pit bull is
16 located for sanitary and health conditions