Posted on April 10, 2008 · Posted in Brain Injury
EDITORS NOTE: Yesterday, we talked about the “invisible injury” nature of brain injury, specifically with respect to public recognition of the role of seizure dogs. I had intended to next write about seeing the invisible, thru following the patterns of the footprints, but have decided to wait for that until tomorrow. I received this comment on seizure dogs from one of my readers, and felt it should go next.

Most people do not know what the legal description of a Service Dog is. A service dog is any breed of dog which is trained to perform certain tasks to assist their owner with disabilities and have access to all public facilities under ADA 1990.

Whether that person be:

Physical Disabled – Guide, Hearing, Mobility, Medical Alert, etc.
Social/Emotional/Mental Disabled- Autism, Acute Issues (phobia to leave home, socialize, depression, etc.)

One of the sad notes in the discrimination against service dogs is the current move to enact breed specific legislation in many areas. Due to the large numbers of unwanted pit bull type dogs, many are being rehabilitated as service and therapy dogs, including impounded dogs from the Michael Vick case. Once placed in a home these highly trained dogs provide a quality of life which would be impossible otherwise. In some places, BSL allows law enforcement to physically remove and euthanize these service dogs, or, to require muzzles which inhibits the dog’s ability to perform tasks for their handlers. Many BSL laws require $1,000,000 in home owner’s insurance which is difficult for those disabled people who rely upon their service dogs.
Pit Bull type dogs are ideal for service dogs. Small and compact, they are still strong enough to pull a wheelchair and carry backpacks, their coats are easy to maintain. They have confidence to function in public but were also bred to be submissive to humans. Even Helen Keller owned a pit bull.

Because the ADA is a federal law, it should override any state or local legislation when dealing with service dogs, no matter what the breed. Restricting pit bull service dogs in some areas violates what the US Supreme court has deemed a fundamental right, the right to interstate travel. In theory, all service dogs are protected under federal law and in some states such as California, to harm a service dog is a felony. However, if you call the Department of Justice, you will receive varied responses on your inquiry as to the rights of your service dog in BSL states, or your right to travel with your service dog through areas which have BSL legislation. Legally, pit bull service dogs are protected federally, but it will be a case by case decision to decide the fate of handlers and their dogs.

According to the ADA:

* Require special identification for the dog
* Ask about the person’s disabilitiy
* Charge additional fees because of the dog
* Refuse admittance, isolate, segregate, or treat this person less favorably than other patrons

The ADA defines a service animal as any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If they meet this definition, animals are considered service animals under the ADA regardless of whether they have been licensed or certified by a state or local government.

Thank you Becca for this fine contribution.  And of course, if other readers would like to add something in response to any of my blogs, I will consider posting their comments here as well.

Well it is a bit off topic, the lawyer and the dog person in me, can’t really resist jumping in on this topic.  I have been a poodle person for years, yet the best dog I know resembles a cross between a border collie and a lab.  She is sort of black, with just enough white on her face to look like she has a little border collie coming thru.  She has web feet and loves to retrieve.  She has the border collies energy and intelligence, with the goofy affectionate people bonding people you might expect to see in a good lab.  The so-called experts tell me this dog is a Pit Bull.  I know dogs and this is a good dog.
In law school I learned the principles of legislation and discrimination.  The lay person thinks that discrimination is a bad thing, because the term is usually applied to racial or religious issues.  But all laws discriminate.  The theory of a law is you define legal versus illegal conduct, based upon a definition of some type.  That definition is a discrimination.  Now the legal issue is whether that form of discrimination is legal or constitutional.  Unconstitutional discrimination primarily includes discrimination against race or religion, and certain other protected activities.  But a discrimination while appearing constitutional, can still be illegitimate if it serves no rational state interest.  
A law serves no legitimate state interest if the stated basis of the law is irrational as applied to the class against which the discrimination is aimed.  I would not argue that the state does not have an interest in controlling unsafe animals.  I would not advocate a law that allowed tigers to roam free.  A law that prohibited  predatory SPECIES of animals to be off leash in a dog park, is certainly legitimate.  I do not want my dog eaten by a mountain lion.
But all dogs are the same species – the DNA of different breeds are virtually indistinguishable. It is an old cliche: there are no bad dogs, only bad owners.  I wouldn’t go quite that far.  There are some bad dogs, just like there are some bad people.  But I can’t accept that there are any bad breeds.  But let  us assume that there was a particular breed, lets call them the Saber Dog breed, that was in fact a universally dangerous animal.  Now in my artificial world, all Saber Dogs would have fangs like a saber tooth tiger, and since no other dogs have such teeth, we would know they were dangerous animals on sight, and we would have a rational law that could be applied.
But the similarities between breeds are staggering.  As well as I know dogs, I am still not convinced that my favorite dog is really a Pit Bull.  If she is a Pit Bull, she is the second Pit Bull I have known well who was smart, playful and liked to run around until she dropped chasing and being chased by other dogs.  So based upon my experience, that makes her breed a good, pleasurable breed to own or just spectate.
I challenge anyone to define a law prohibiting Pit Bulls that can be enforced on a visual inspection that is not at risk for being overly broad and excluding “safer” breeds.  How much do you have to mix with a boxer, or a lab, or a rottweiler to make them look a little too much like a Pit Bull?
I do believe there are bad dogs, but I am convinced that 90% of the problems with dogs stems from the dogs not getting to run around freely at times and not getting to play with other dogs.  A dog park solves both of those problems.  Not allowing a breed which the regulators have identified as potentially being dangerous, to engage in the kind of activity which would reduce their danger, is totally irrational.  
In summary, dogs are wonderful animals.  Something about their DNA as a species gives them a special bond with human beings.  They will become your best friend, if you allow them.  But that trait is spec
ies specific, not breed specific.  Breeding is almost entirely about looks, not temperment.  The best dogs are often mutts.  In fact, all dogs are essentially mutts. You only get into trouble breeding dogs when  you interbreed them.  No law can be defined to discriminate between the good dogs and the bad dogs.  To base a discrimination on whether this particular “regulator” thinks they look too much like a dangerous dog breed, is positively Un-American.  Especially when you consider the breed is named “American Pit Bull Terriers.”
And that is my humble opinion.

About the Author

Attorney Gordon S. Johnson, Jr.
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice :: 800-992-9447