we discussed in our brief the this report actually never even addressed the declaratory judgment claim but the plaintiffs here clearly have standing to pursue both claims the basis of this litigation is a challenge to sue cities pit bull  it's an ordinance that bans three identified breeds and identify and also bans mixed breed dogs that have the predominant characteristics of these three banned breeds ms miers had previously had two dogs taken from her under the ban she then brought suit challenging the constitutionality of the ban and ultimately asserted two claims there's a facial claim which says essentially that the the ordinance unconstitutional in all of its applications and as applied claim that relates to her mixed breed dogs so the the basis for the facial challenge is that the current state of of our understanding and science in behavioral genetics is that individual breed such as the breeds that have been banned here are no more dangerous than any other breed of dogs as a result the ordinance lacks a rational but the other the other challenge to the ordinance is that with respect to mixed breed dogs like ms miers there have been a number of studies that have been conducted recently that stablish that even trained animal professionals are an able to determine the predominant breed of a dog of unknown origin based upon visual inspection so isn't that an argument that goes to the station challenge rather than i particular as applied the as applied as you took my two dogs right yes and so that if you looked at her claim for declaratory relief i mean that i've been practicing constitutional law for you know almost thirty years and i think it's difficult to it's easy to say ok in a broad sense here's the difference between facial and as applied challenges but as you get to the margins which is i think where we are here it is a little bit more difficult because if you take the definition of facial challenge as saying ok that that's a challenge that claims this ordinance is unconstitutional in all of its application the allegations with respect to mixed breed dogs don't seek to invalidate the ordinance and in all of its applications but it does say that look when you're making decisions on mixed breed dogs as opposed to a purebred of one of these banned breeds the ordinance fails because we know when you make that visual identification you're wrong more often than you're right so but that's also consistent with the facial challenge we have to show in every application if you were pit bulls and ones that look like  facial challenge the standing issues are still out there and the district court was still incorrect in reaching out to terminations that the plaintiff lack standing and if you look it's clear that the plaintiff brought claims both for declaratory declaratory relief under the  judgment act and also for injunction perspective injunctive really so if you look at the rules for standing are the same for both but the analysis is different so if you look at the plaintiff's claim for declaratory relief you've got a plaintiff that has had two dogs taken away from her and seeks to clear tory relief that this ordinance is unconstitutional based on the way the ordinance had been applied to her or the more facial challenge the ordinance is unconstitutional due to the scientific evidence that i mentioned earlier but when you so when you look at you know what are the requirements for standing injury and backed causation redress ability on the declaratory claim plain of clearly has an injury and back she had two dogs taken from the causation element satisfied that the dogs were taken from her as a result of the defendant's actions in enforcing the ordinance and this ordinance under which she was subject to harm unconstitutional under the park lane for prospective injunctive relief still the same three elements injury in fact causation redress ability but the analysis becomes different because now you've got a plaintiff who no longer has a dog who's expressed an intent to get a dog in the near future the plaintiff subsequently moved from sioux city that still works in sioux city still has a veterinarian and sue states that he still wants to be able to bring a dog into the city to visit family the question becomes is that plaintiff subject to an imminent threat to future or enforcement all of the cases cited by the district court on that opinion on that issue were cases where either the governmental entity said look somebody challenge this the statute we no longer intend to enforce it or a plaintiff has said ok i engaged in this conduct that was potentially a violation of an ordinance or a statute but i no longer intent to engage in that in the future this is a different scenario in those situations it's easy for a court to say yeah there's no threat of imminent future prosecution here so there's no need for perspective injunctive relief this is a case where the plaintiffs has made allegations that she would like to engage in conduct that potentially would be outlawed by this ordinance in the future therefore she has standing to see perspective really with respect to the ordinances application the the other point that we raise past and said the definitions used to identify breeds are not void for vagueness the difference in this case is that there's been a significant amount of scientific discovery with respect to the canine genome that has occurred between these earlier cases and where we are today so as the amended complaint states the the definition of saying you know a dog is a pit bull if it's one of these three breeds ok you can you can accept that if it's in a case the registered dog one of these three that constitutes a pitbull but when you start talking about mixed breed dogs and you say ok if a dog a dog is a  pitbull if it has these characteristics well we now know that doesn't mean that the dog is a pitbull we're able to do d n a tests now that identify very as a result there have been studies that have been undertaken were trained professionals animal control officer veterinarians dog trainers look at dogs that are of mixed breeds of unknown origin and try and identify what are what are the predominant breeds of this animal and they're wrong more often than they're right as a result you know under the vagueness standard the concern is you know does it a person of ordinary intelligence have an opportunity a reasonable opportunity to know what's prohibited well here where you can't look at a dog and det mixed breed dog in determine if it's if it's a pit bull that person doesn't have an opportunity and in fact as alleged in the complaint that the plaintiffs here had exactly that situation happened where one animal control officer looked at her dog and said nuts not a pit bull and no action was taken but then a year later another animal control officer looked at the same dog and said no it is a pit bull and so the animal was taken as a result the void for vagueness claim here should statute is unconstitutional and injunctive relief to prevent future deprivation of dogs correct but the plaintiff here is a non resident of the city doesn't own a dog and testified that she had no immediate plans to acquire a dog so i guess i want to get direct you to the standing issue  that support the court's finding of a lack of standing ok so with respect to the prospective relief that potentially could support the court's finding now the difference is there is one line in her deposition where the plane was asked you currently have a dog she answered no then the question was asked why she said well my my boyfriend i work full time and we don't have time right now subsequently she filed an affidavit stating that she did intend to get a dog in the near future but it is the court's analysis focusing on the fact that the plaintiff currently didn't have a dog begs the question in a sense the plaintiff had dogs both dogs were taken from her to see need to get another dog have that dog taken from lost two dogs she could have brought a claim for damages the fact that the plaintiffs sought to clear a tory relief shouldn't eliminate her standing when the declaratory relief itself under the under the eighth circuit laws and or opinions and the supreme court's opinions the disclaimer atory relief itself provides redress ability in not the eight circuit case where a father had a son that was killed by a police officer while fleeing the police officers action was authorized by a missouri statute which allowed an officer to use deadly force against a fleeing suspect the father then brought  claim challenging the constitutionality of that statute he couldn't see damages and he didn't he sought simply a declaratory judgment that this statute was unlawful and  please court counsel ten years ago the city of sue city had a problem around twelve percent of the animals of the dogs in sioux city were pit bulls or pit bull type dogs so at that time those dogs were really sponsible for forty four percent of the vicious bites in town fast forward to today we're not saying that well let me put it this way everybody gets their day in court longstanding principle it's been around for probably longer than the country has but in order to have your day in court you have to have standing and in this case miss miers does not have standing but the second prong is she said that she doesn't have any intention to get a dog in the near future let alone even a pit bull so at that point courts have said what about this argument that i had two dogs taken and because of that i'm entitled to a declaration that the statutes on constitutional and i have sufficient injury because i had two dogs take well the two dogs taken i think it is a little bit of a misstatement because the two dogs were removed those dogs were given back to her at which point she decided to place them in locations outside of the city they were removed from her possession and she was afforded the opportunity to come get them and have them removed from the city she chose to not retain ownership i believe those but but i believe that's a non issue if she wanted to challenge those issues she could have but she didn't in this petition she could have challenge that all the way up to the i was supreme court if she liked to for those two dogs but what she is asking for is going forward i want to be protected in case i ever decide to get a pit bull the courts have said that standing has to be maintained throughout the length of the litigation and at that moment when she said she had no intention of going forward with getting another pit bull i believe in all honesty we last stand mr someone pointed a little bit about the breed specific language that that we have and talked about d n a identification and i would agree with him it's come a tremendous leaps and bounds we can do things with d n a that we never probably thought p but what the sioux city ordinance does it says that it bans the three breeds plus an animal that has the character of the predominant characteristics of one of those breeds in essence the city doesn't really care what the d n a makeup of the dog is rather if it's got the muscular jaw if it's got the muscular build if it's a short dog and big jobs that's the type of dog that is causing injuries in sioux city and that's the type of dog that we the one case gives us a little bit in the doctrine of standing that there has to be an entry in fact a causal connection and the injury must be likely not speculative here i would argue that mrs myers approach is speculative she's saying i might want to get a dog in the future and we don't have that here  her retrospect you cannot rogers back to really establish exactly if that standing goes away for a short bit of time the court is obligated upon a request from opposing counsel or the opposing and in this case the defendant to dismiss  well now she does or declaration that he can and to adopt a dog in the near future that the vet her veterinarian is in sioux city and that she would  in t n to take a future adopted dog to the to the same veterinary clinic and and take the dog to visit friends and family within the city and we are not opposing that declaration but what i'm stating is that in her deposition i believe of the some sixty to ninety days before that declaration she stated that she had no intent to get a do couple that with the fact that she lives outside the city and and i would agree i think that one prong is met but the second prong there for a period of time she stated under oath that she had no intention to obtain another dog there's also been a little bit of talk today about the vagueness climb and here in the plaintiff has admitted that she's owned for five pitbulls she even went to name four  she said that she knew what the ordinance meant and she knew as it was applied to her what that meant admittedly the city did to revoke two dogs from her give her the opportunity to have them placed outside of the city which is the normal practice of our  first colorado case at five thirty us seventy three gives us a two part test for vagueness and i quote the ordinance or is vague if it fails to provide people of an ordinary intelligence or reasonable opportunity to understand what conduct it prohibits or it authorizes or even encourages arbitrary or discriminating forces aren't you getting to the merits now if we get to that point i would i would argue that we don't even have to get to the merits of the case because of the standing issue but if we get there the vagueness claim was already dismantled and when the district court get first crack at that absolutely if you have never for the questions i have no other argument  on a couple quick points first the deposition of the plaintiff it appears in joint appendix at page one hundred eight this is exactly what was said question do you currently have any dogs now answer no question how answer me and my fiance work full time basically and just don't have time right now there is no expressed intention of never getting another dog there's no indication that if the plaintiff does get another dog you wouldn't be of a breed that would be banned here so the record is she said she doesn't have a dog right now and doesn't have time right now three months later she filed an affidavit saying i intend to get a dog in the near future and it's reasonable for the plaintiff at that point because she wants to bring the dog into sioux city to wait for this litigation to get resolved the other issue is go back to the complaint or the amended complaint there was no allegation made at the time of filing that the plaintiff had a dog right now it was that the plaintiff had two dogs taken from her on another issue when when counsel was asked if there are other cases that were similar to this and they referenced the diaz case out of the district of colorado  successfully challenge the denver pitbull ban based on exactly the kind of scientific evidence that we have in this case ultimately that case was voluntarily dismissed because  plaintiffs moved from denver and had no intention to come back  the ultimate issue in this case is not whether it's a facial challenge or an as applied challenge it's not even really the void for vagueness argument it's does a plaintive who has had two dogs taken from her under a challenge ordinance have standing to seek the clarity torrie relief the answer is unquestionably that the plaintiffs does the district court never even addressed that claim the district court focus solely on the claim for that are found within the city but on the on the declaratory judgment claim does the plaintiff who's lost property as a result of actions taken under a city ordinance therefore have a right to seek a declaratory judgment at that ordinance and it's cited in our brief it's five zero two f second five eighty eight and then the specific quote is on page five ninety five i see i'm out of time one quickly isn't there a difference between a declaration you took my two dogs improperly and a declaration that the statute on its face is facially unconstitutional to make sure i understand the question is that yes i mean obviously there are substantive differences between those two claims but are you asking from a stand in perspective it seems to me you're kind of bootstrap the taking of the two dogs into a into a facial challenge in trying to use that as a way to get standing on a facial challenge for which you otherwise might not have stand and make any sense so yeah i see where you're going with that i i think that the rule which is that if you've been subject to past action under a statute which you allege is unconstitutional you know your declaration for that is that improper or damages right but you can bring a facial you can say i've been subject to harm under this ordinance i'm now challenging the constitutionality of the ordinance and my challenge as a facial challenge that it's unconstitutional in every application that you and and so if we say well that's what the plaintiffs claim is here fine but the plaintiff still has standing to bring that claim thank you