Civil Rights
Aug. 10, 2002
ADA Doesn't Guarantee Pit Bull Ownership, Judge Says
SAN FRANCISCO - Siding with landlords, a federal judge has held that a disabled tenant cannot insist on keeping his pit bull as an "emotional support" animal so long as the landlord has offered the alternative of allowing a "safe and gentle" dog breed.
U.S. District Judge William Alsup issued a preliminary injunction Wednesday ordering AIDS patient Guy Lowe to get his 35-pound pit bull, Sophie, out of his San Francisco apartment by Sept. 9, pending a jury trial to resolve his right to keep the dog.
Lowe, who has lived in the apartment since 1995, got the dog in June 2000 after a doctor recommended he get an animal for emotional support to relieve his depression.
The building owners had a no-pet policy but agreed to allow Lowe to keep a variety of dog breeds - but not the pit bull. In a letter issued Dec. 26, 2001, they declared the dog constituted a nuisance and grounds for eviction.
They sought a declaration from the court that landlords are not required to allow pit bulls as service dogs under the Americans with Disabilities Act, the Fair Housing Act, the Rehabilitation Act, the California fair housing law or any local city laws. Zatopa v. Lowe, C02-2543WHA.
Although animal behavior expert Ian Dunbar tested Sophie and found she was "unequivocally the safest dog I've ever tested," Alsup concluded that the owners had met the legal requirement of offering Lowe a "reasonable accommodation" by permitting him to keep a dog, other than a pit bull, on the premises.
No tenants have complained about the dog, according to the court.
"The objection to pit bulls is plainly supported by a reasonable basis," Alsup wrote. "Pit bulls have killed more humans in the past 11 years than any other breed (save Rottweilers)," Alsup said.
The law "does not impose on the landlord any case-by-case duty to assess the psychological proclivities of any specific individual dog affected by the exclusion," the judge added.
Appellate courts and the Supreme Court have said "an accommodation need not satisfy the particular preferences of the disabled person in order to be held reasonable," he reasoned.
"Neither tenant Lowe nor his doctor has contended that this emotional-support animal must be a pit bull," Alsup wrote.
He said the harm Lowe suffered was of his own making because he brought home a pit bull, assuming the risk that the landlord would challenge his selection.
"Lowe is not entitled to bootstrap his way to victory by orchestrating a fait accompli," Alsup wrote.
"I am extremely upset about the decision," Lowe said Thursday.
"I don't understand why all the evidence was ignored. We had great evidence. She was examined by Ian Dunbar and passed with flying colors. Sophie has never had any aggressive tendencies. I am a good owner and am aware of her at all times. I'm just flabbergasted."
One of his attorneys, I-Wei Wang, of Coblentz Patch Duffy & Bass, said, "We think there are grounds for appeal. We don't think the facts or law supported a preliminary injunction."
"Our experts have numerous academic studies and articles that show breed statistics are not a reliable way to determine the dangerousness of a dog," she said.
Attorney for the landlords, Saul Ferster, a San Francisco sole practitioner, could not be reached for comment.
Lowe said he was not sure what he would do next, adding he may have to move.
"But I'm going to continue to fight my landlord. The hysteria raised by this is ridiculous," Lowe said.
Alsup held that the experts had not provided evidence regarding the ability of their tests to predict future behavior. On that basis, the balance tipped in the landlords' favor, "even if the risk of that attack is remote."
Landlords Michael Zatopa, Ellen Stephens, Timothy Tobin and Deborah Tobin listed a number of dog breeds they would accept, including cocker spaniel, poodle, beagle, basset hound, Irish setter, Boston terrier, Airedale or Scottish terrier, according to Alsup.
Pamela Mac Lean
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