Game Dog Guardian. It’s Our Turn To Fight For Them.

DENVER: Short for "Discrimination"

Katie Bray and Tiffany Huggard-Lee    

September 10, 2010

Back in the Day…

In 1992, the state of Colorado amended its constitution (Amendment 2) to prohibit the enactment of any law designed to protect homosexuals. 

In 1996, in a case called Romer v. Evans, the United States Supreme Court held that the amendment: “[i]mposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.” FN1 

The Supreme Court recognized homosexuals as a uniquely protected class along with the other long recognized protected classes like marital status, political affiliation, physical or mental disability, age, or gender.  Accordingly, the Supreme Court said Colorado’s Amendment 2 was a violation of the Equal Protection clause of the United States Constitution. 

Most recently, a targeted class has been physically or mentally disabled Denver, CO, citizens with service dogs who may look like “pit bulls.”

 

What the Feds Have to Say

In March of 2010, the City and County of Denver was temporarily restrained from enforcing its ordinance that prohibits citizens from owning or harboring “pit bulls,” against three disabled citizens with service dogs who meet Denver’s physical criteria of a “pit bull.”

A few months later, on July 26, 2010, the US Department of Justice (DOJ) published a final rule in order to adopt enforceable accessibility standards.  That final rule rejected the idea that local laws could prohibit disabled citizens and their service dogs access based on the dog’s breed.

In its final ruling, the DOJ fortuitously outlined the very problem with ordinances that regulate people with certain breeds of service dogs, saying the limitation is “based on where they live rather than on whether the use of a particular animal poses a direct threat to the health and safety of others.” 

After reviewing the new federal standards by the DOJ, the City of Denver was forced to reconsider certain restrictions contained within its breed specific ordinance that would otherwise apply to Denver citizens with disabilities. 

In classic Denver style, on September 8, 2010, the Denver Post (The Post) published an editorial endorsed and written by the Denver Post editorial board entitled “Dog Bans Should Be a Local Matter.”  

The Post said “Many breeds of dogs already are available to help people with disabilities in their everyday tasks.”  Read: Choose another breed of dog. 

What about the person with a mobility disability who has a German Shepherd service dog in Clarance, MO, or the blind person in Fairfield, IA, who has an overweight Labrador Retriever seeing eye dog?  Several mobility schools exclusively train Great Danes for service work...what about the cities that prohibit Great Danes?

Denver Post, we know the only headline you’re ever concerned with has the words “pit bull” in it, but we’re not just talking about “pit bulls” anymore.

 

The Denver Post Challenges the ADA

The Post’s editorial continues by attacking the ADA standards: “Because the designation for 'disabled' has become an increasingly low threshold to meet, it is likely that the new federal exemption will be exploited,…[t]he new regulations make it impossible for authorities to determine whether someone claiming to own a pit bull as a certified service dog is telling the truth.”

The belief that the Americans with Disabilities Act establishes a low threshold of disability to meet to qualify as a protected service animal user is not dog related, or even entirely true.

The definition of disability comes from the original text of the ADA which was signed in 1990. The standard of disability given by ADA was interpreted so strictly by the courts back then that Congress passed the ADA Amendments Act in 2008, to make the definition more reasonable.  Even then, it is still difficult to say that the definition of disability under the ADA is a “low threshold.”  This comment by the Post is simply another piece of misinformation. 

And not requiring proof of documentation detailing the person’s disability is not specific to pit bulls.  The DOJ has, on several occasions since the original ADA regulations were adopted, published additional guidance documents confirming that no certification is required for service animals, and that service animal users cannot be required to provide any sort of paperwork or documentation.  The prohibition on requiring documentation for service animals is definitely nothing new or specific to pit bulls. 

Perhaps the Post didn’t read the part of the DOJ’s final rule that offered an exemplary solution to the public safety issues the Denver Post is concerning itself with:

“State and local government entities have the ability to determine, on a case-by-case basis, whether a particular service animal can be excluded based on that particular animal´s actual behavior or history--not based on fears or generalizations about how an animal or breed might behave.” (emphasis added) FN2

If the point of a breed ban is to keep people safe, isn’t determining whether the service animal behaves in a way that is dangerous the best way to accomplish public safety?

Apparently not.  The Post would rather Denver infringe on the liberty of a citizen with a disability whose service animal happens to look like a “pit bull,” than evaluate dogs they think might be dangerous based on their behavior, as the DOJ instructs.

Clearly the City of Denver, along with its newspaper, has a far better understanding of determining the dangerousness of a dog – you can simply tell by the way it looks.

 

Speaking of “I Know it When I See It…”

Hidden within the Post’s editorial is an example of ignorance at its best: “For years, animal advocates who decry bans on specific breeds have tried to use the ADA to defeat local bans. Now, an Iraq war veteran is doing so in Denver….”

There’s no smokescreen for Gulf War Veteran Glenn Belcher to hide behind.  He has a disability (PTSD and severe balancing issues – since the Post failed to print that part) and a service dog who is a “pit bull.” Belcher is not only denied access to Denver’s public buildings because of his disability and dog, but is altogether prohibited from living in the city of Denver with his service animal.

The only reason Belcher is allowed to stay in the city is because of the temporary restraining order against Denver enforcing the ban while Belcher’s lawsuit is pending.

Is the lawsuit even necessary at this point?  We think the answer was clear in 1996, where Justice Kennedy referred to Colorado's Amendment 2 as “…[a] status-based enactment divorced from any factual context…it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.”  FN3

 

***

 

FN1 Romer v. Evans, 517 U.S. 620, 621 (1996).

FN2 2010 Department of Justice: Final Rule in Order to Adopt Enforceable Accessibility Standards.

FN3 Romer, at 653.

Photos Courtesy of Tiffany Huggard-Lee, Anthony Barnett, and JJ Cook