Court: Part of Des Moines vicious dog law unconstitutional
By DAVID PITT
Apr. 04, 2018
DES MOINES, Iowa (AP) — A dog impounded by the city of Des Moines two years ago under the city's vicious animal ordinance won a court battle Wednesday in which the Iowa Court of Appeals declared a portion of the city's ordinance unconstitutional.
Pinky, a 9-year-old mixed breed dog, was taken into city custody in March 2016 after an altercation with a neighbor cat, Rebel.
Both animals were allowed outside without restraint and it's unclear who started the fight but both survived. City officials blamed Pinky and she was taken away from her owner after the city's chief humane officer concluded she exhibited "vicious propensities" under the city's dangerous animal ordinance. She was initially to be quarantined for a week but a day before release the city chose to declare her a dangerous dog and notified owner Dianna Helmers of plans to euthanize her.
Helmers fought a two-year battle to save her and get her released. She was elated with the court's ruling.
"It's long overdue but, of course, they will probably fight it and they will try to keep her locked up even longer," Helmers said.
The case ended up in front of the Iowa Court of Appeals after Helmers lost the case before an administrative law judge and a state district court judge, who in July 2016 upheld the dangerous dog designation.
The five-member appeals court, in a split 3-2 decision released Wednesday, said the definition of a dangerous dog as one that exhibits vicious propensities is unconstitutionally vague. The opinion written by Judge Mary Tabor also said the ordinance leaves too much discretion in the hands of city officials to determine which animals are considered dangerous.
In a separate opinion agreeing with the majority of the court, Judge Richard Doyle was critical of the city of Des Moines for being "unwavering in its mission to kill Pinky."
He points out the owner of the cat wanted to settle things with Pinky's owner from the beginning and the veterinary bills were paid by homeowner's insurance. He said Pinky's owner offered to take her out of the city of Des Moines to her licensed animal shelter two hours away near Reinbeck to live.
"Sounds like a win/win solution — Pinky's life is spared and Des Moines is freed of what it perceives as a threat of harm to its citizens," Doyle wrote. "So, I ask again: Why can't this dispute be settled?"
The two judges who disagreed said Helmers failed to prove the ordinance is unconstitutionally vague.
City Attorney Jeff Lester said the city is disappointed with the ruling from the "profoundly split" appeals court.
He said the dog shook the cat violently causing substantial injuries requiring 36 staples to close its wounds.
"The dog had been previously found to be a high-risk animal, was not licensed and lacked current rabies tags as legally required," he said.
He said she's humanely confined with regular exercise and veterinary care. The city has offered to send the dog to a "no kill shelter" outside the state of Iowa but Helmers has declined, he said.
Helmers' attorney, Jamie Hunter, said the city indicated plans to appeal the decision to the Iowa Supreme Court but Lester said the city is weighing its options.
The city has not allowed anyone to visit Pinky in two years, Helmers said.
"If you're going to fight this the least you can do is let her come here with me be able to have a life see her old family and just live her last couple of years she has left in some kind of piece and serenity," Helmers said.
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