Will the City's Reversal Have Legal Ramifications?
The new provisional breed-restricted license takes effect on January 1, 2020.
Denver, CO - On November 1, Kory Nelson, a senior assistant city attorney for the City and County of Denver, penned a post on his personal Facebook page. The post outlined the legal history of the Denver pit bull ban, his own role in successfully defending Denver's Home Rule Authority against a state preemption law, and how the recent pit bull ban debate in Denver ignored the overwhelming scientific evidence introduced to courts of law to uphold pit bull ordinances.
In my role as an attorney for the City & County of Denver, I had the experience of litigating the issue of pit bull bans in the courts of Colorado. From that experience, I became fully immersed in all of the scientific evidence relating to the propensity of specific dog breeds to engage in attack behaviors that provide a substantially increased risk of victims suffering significant injuries and death. - Kory Nelson
Nelson's post came just days before Denver voters would determine Proposition 2J, which repealed the city's pit bull ban and replaced it with a conditional breed-restricted license. As we stated in October, we expected it would prevail just based on its language. It indeed prevailed by a 66% to 34% margin. It also prevailed because city officials and media outlets ignored the scientific evidence used to uphold the ban, along with a dozen new medical studies implicating pit bulls.
"Shall the voters of the City and County of Denver adopt an ordinance authorizing the city to grant a provisional permit to owners or keepers of a pit bull, provided the owner microchips the animal and complies with additional requirements set by Denver Animal Protection?" - Text for Proposition 2J
Denver's own dog bite statistical data was ignored as well. Recent data shows that over the last three years (2017 to 2019), pit bulls are among the top six biting breeds across all four injury severity categories, Levels 2, 3, 4 and 5 -- 5 being the most severe. Despite their low population in Denver, pit bulls are also among the top three biting breeds for Level 4 and 5 bites. We stand by our estimation that there will be a four-fold increase in pit bull bites in just five years time.
In America, there have been dozens of lawsuits about pit bull regulations. In 100% of those lawsuits over well written laws, the Courts have upheld the regulations for one main reason: The scientific evidence admitted in Court has proven that Pit Bulls ARE more dangerous than other breeds. The evidence clearly establishes that the history of selective breeding by humans for the desired dangerous attack behaviors in the profitable dog fighting ring resulted in this phenomenon: When a Pit Bull does attack, it is more likely to bite its victim in the head/neck area, hold that bite (no matter how much blunt force is applied), and shake its head back and forth to rip and tear its victims flesh and blood vessels, causing massive damage and causing victims to bleed to death…
In the 2004 trial in Denver District Court, the Court ruled that the City had provided more unique and compelling evidence as to the dangerousness of pit bulls than had been introduced in the original 1989-90 litigation that went before the Colorado Supreme Court. In 2004, the City provided expert testimony directly relating to the November 20, 2003 death of Jennifer Brooke in Elbert County, when 3 pit bulls cornered Jennifer in her barn. The horrific crime scene photos showed Jennifer was literally ripped apart by these large tenacious fighting dogs. The expert verified that attacks by multiple pit bulls are exponentially dangerous (x2, x3, x4 . . .), while the danger levels from other breeds only multiply (2x, 3x, 4x . . .) - Kory Nelson
Nelson states that expert testimony during the trial verified that attacks by multiple pit bulls are "exponentially" dangerous, while the danger levels from other breeds only "multiply." We examined this effect in 2018 by reviewing 13 years of fatal attack cases involving 3 or more dogs. When fatal attacks involved 3 or more dogs that included 1 pit bull, death resulted 16 times more frequently when 2 or more pit bulls were attacking than when the group of dogs only included 1 pit bull.
Denver's new provisional breed-specific license allows multiple pit bulls per household, specifically 2. Perhaps the city's limitation of 2 was a mechanism to avoid liability? Certainly, if one does not limit pit bull owners, many owners quickly escalate to 4 or more pit bulls -- a pack of pit bulls. Not having a limitation would be "reckless" by the city. Allowing 2 pit bulls, however, is still reckless given the expert testimony that attacks by multiple pit bulls are "exponentially" dangerous.
The recent debate over pit bulls in Colorado has completely ignored the overwhelming scientific evidence that has been introduced in the one place Americans go to settle disputes – the courts of law. The discussions in the media and every other place has been one-sided, propped up by the underground pit bull propaganda lobby, funded by secret and suspicious sources. No one has stood up for the future victims and their family, as they don’t yet know they will join that club, and they have no funding for lobbyists. The best source for the truth is the non-profit group, Dogsbite.org, which has recorded that between [2005-18], 311 of the 471 fatal dog maulings in the U.S. were perpetrated by pit bulls – that is 66%. But pit bulls only make up [6%] of the U.S. dog population. Just this past week, pit bulls killed three more Americans. Most victims are females and children in the household of the pit bull owner, where many attacks come at a complete surprise – without any prior behavioral signs of aggression. - Kory Nelson
"No one has stood up for the future victims and their family," Nelson states. No one has talked about the 14 medical studies since 2011 all showing that pit bulls inflicted the highest prevalence of injuries compared with other breeds and that 12 of those studies show that pit bulls also inflicted the highest severity of injuries. No one is discussing that since 2005, pit bulls have inflicted 66% of all fatal dog maulings, yet only comprised 6% of the total U.S. dog population during that period.1
Intentionally ignoring the reliable scientific evidence admitted and considered by judges in these lawsuits to reverse policy decisions is the epitome of recklessness – the conscious disregard of substantial and unjust risk to the health and safety of the public – which amounts to the abandonment of the social, morale and legal primary duty of government. Such an action would subject that government entity to massive levels of civil monetary liability, as the legal protection of governmental immunity could easily be pierced due to this intentional disregard of the risk. The established record of evidence is so substantial as to provide the keys to the treasury to the civil plaintiff’s litigation attorneys who will represent every future victim of a pit bull attack. Rightfully so. - Kory Nelson
Nelson, who also wrote biting commentary prior to Castle Rock City Council repealing their pit bull ban, offered a future liability scenario. "The established record of evidence is so substantial as to provide the keys to the treasury to the civil plaintiff’s litigation attorneys who will represent every future victim of a pit bull attack." Meaning that the city's reckless disregard of reliable scientific evidence admitted to courts pierces governmental immunity; thus allowing attorneys to sue.
Similar testimony was presented to Denver City Council in February by Tom Moe, who drafted the original ordinance in 1989. Mole was asked if the city could be sued if it reverses its pit bull ban. "One of the dangers that I see here is that all this law," referring to the legal rulings in the ban's history, "indicates that pit bulls are a dangerous dog." He added, "This has been supported in a lot of other places," referring to the multiple state and federal court decisions in other jurisdictions.
Question: Someone raised the question whether we might see a court challenge if we were to reverse the position of the city? (3:31:30)
Answer: That's a strong possibility … The first time it got tested, there were a bunch of organizations, including the American pit bull breeders and also the UKC or AKC, at least one of them was involved. There were about four different organizations, so a lot of evidence was presented on both sides, hours and hours. With some modifications to the ordinance, the judge decided it was constitutional. It was appealed again, all the way up to the state supreme court. The state Supreme Court found it constitutional. In my testimony, I mentioned all of the characteristics of pit bulls. The Supreme Court agreed. That it made [pit bulls] more dangerous…
Then it got challenged again when the state of Colorado said it was their purview [after passing a state preemption law], not the localities to decide whether there could be breed-specific legislation. So, once again, Kory Nelson, who is still in the city attorney's office, handled that. And once again, the court upheld the ordinance.
One of the dangers that I see here is that all this law indicates that pit bulls are a dangerous dog. That [pit bulls] have a higher propensity to inflict a severe bites. Not number of bites, but severity of bites. This has been supported in a lot of other places. So, given that, if we pass this ordinance and somebody gets attacked, they could sue the city. And, based on the law, if the city is viewed as reckless, then the recklessness pierces the governmental immunity that protects the city from being sued, and allows somebody who is the victim of [a pit bull attack] to sue the city. And, get taxpayer dollars as a result of that suit. - Tom Moe
Coconuts and Camels
Nelson's post links to an editorial by Krista Kafer, a columnist for the Denver Post, who was part of Nelson's commentary when Castle Rock was discussing the repeal of its pit bull ban. "All she does is suggest that the mothers and fathers of Castle Rock children should offer up their children’s flesh, scalps, limbs and lives on the 'hope' that 100% of pit bull owners are responsible enough, and good enough, to train their dogs against their natural instinct," Nelson wrote in 2018.
In the 13-years of operating this nonprofit, we have seen all kinds of faulty apples to oranges comparisons (but falling coconuts kill more people!) in an effort to minimize the horrific injuries pit bulls inflict on people. In fatal dog attacks, 53% of pit bull victims live in the dog's household and are considered "family" members. Kafer's most recent fairy tale is yet another iteration of this minimization by dangling her anecdotal ferret, cat, camel, horse, hamster, parrot and ostrich bites.
"The fact is dogs of any breed can bite. I’ve been bitten by a retriever, a dachshund and a collie. Yes, a Lassie lookalike bit me in the face. The dachshund’s bite, however, was the deepest leaving both a puncture wound and a bruise. No dog bit me while I was a volunteer at the pound; I was attacked by a ferret and a cat. I’ve also been bitten by a camel, a horse, a hamster, a parrot, and an ostrich. The parrot’s bite was by far the worst. Animals bite for a variety of reasons -- the ostrich liked my shirt and hamsters are jerks -- however, most animals bite out of fear."- Krista Kafer
Kafer's recent opinion piece omits the scientific evidence used to uphold the Denver pit bull ban. It also omits the dozen medical studies that show that pit bulls are inflicting the most severe injuries. Instead, she states, "several studies indicate that pit bulls are not inherently more dangerous than other dog breeds." Kafer also obfuscates facts and belittles people: "there have been incidents of aggression towards other dogs or people," she writes. "For this reason, people are concerned."
Her piece was also factually faulty -- the breed-restricted license does not mandate pit bull sterilization. The city's website states that a pit bull owner must show "proof that the animal has been neutered or spayed, or proof of an intact license from DAP that allows the animal to remain unaltered." Obviously, her piece is a Pit Bull Hack as we defined back in 2016. "A 'Pit Bull Hack' is generally a pit bull protectionist given a media platform to spread misinformation to the public."
As Nelson states about the ballot item, there were no discussions by media outlets that were not one-sided, favoring pit bulls. Not one stood up for "the future victims and their family" who "don’t yet know they will join that club." Some people who voted for this repeal will learn the hard way that the conditional breed-restricted license has no protections for victims. Most incredibly, there is no mandatory insurance. Many victims will have no path for civil recourse after a disfiguring attack.
At the moment Tom Moe first uttered, "pierces," he was forcefully interrupted by City Council President Jolon Clark, who strongly supported the ban's repeal. The key to suing all government bodies relies on piercing sovereign immunity. In the case of Denver, Moe argued that if a victim could prove the city was "reckless" in repealing the ban, this would pierce governmental immunity (3:33:48). That was an interesting moment for a sudden and forceful interruption by Clark.
We expect such a lawsuit will be filed down the road. It could occur on Mayor Michael Hancock's watch, who boldly vetoed the repeal effort. Hancock's current term ends on July 17, 2023 and he cannot run for mayor again. Meanwhile, we will end with the words of Youtube artist Robert Crawford, who thanked the mayor for his desire to keep people safe back in March. "He's more concerned with people," Crawford said. "Human beings who may or may not get mauled."
Hancock's actions in February demonstrated real leadership and a real commitment to public safety. Kafer does not care if children, adults and senior citizens are mauled. She does not care about the heaviest class of victims that will be mauled and killed either -- pet dogs. Kafer claimed, "When a city has a breed-specific ban, good dogs die." She omitted that when a city lifts a pit bull ban, hundreds if not thousands of "good dogs" will be torn, mutilated and killed by pit bulls.
03/10/20: Citizen Responds After Denver Mayor Vetoed Pit Bull Ban Repeal
02/24/20: Mayor of Denver Vetoes Pit Bull Ban Repeal Legislation, Slowing Hasty Repeal
02/23/20: Denver Dog Bite Statistics by Breed and Injury Severity (2017-2019)
02/06/18: Castle Rock Should Change Its Pit Bull Policy, by Kory Nelson