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ADA trumps pit bull ban in fight to save Snickers

James Sak is a retired Chicago police officer whose best pal is Snickers, a part pit bull certified service dog that helps the severely disabled Vietnam vet maintain a quality of life.

The city of Aurelia, Iowa, sees Snickers as a threat to Sak’s neighbors and wants to ban the dog.

Last Wednesday, a federal judge decided that it is likely that enforcing the city’s existing pit bull ban would violate Sak’s rights under the Americans with Disabilities Act, so the good news is that Snickers is back home.

The fate of Snickers was placed in question in November when Sak and his wife, Peggy Leifer, moved to Aurelia from Chicago. The couple made the move to care for Leifer’s elderly mother, a long-time Aurelia resident.

Sak himself has health issues. In 2008, he suffered a hemorrhagic stroke, which has left him permanently disabled, with no control over the right side of his body, and confined to a wheelchair.

Fortunately, Sak has Snickers. The part pit bull, part black lab, part boxer is five-and-half years old. Sak bought Snickers from a “backyard breeder” as a pet, and now the dog is entrenched as a member of the family.

Just as important, Snickers helps the disabled Sak get along in his daily activities. After Sak suffered his stroke, Snickers was trained and certified by Sak’s physical therapist as a service animal to assist Sak with everyday tasks.

Now, Snickers has the diploma to prove his utility. On Nov. 28, 2011, Snickers became a “Certified Service Animal” on the National Service Animal Registry.

According to Sak, Snickers is indispensable because the dog helps him when he walks short distances within his home, recognizes when he suffers tremors on the right side of his body, lays on the affected part of the body to stop the tremor, and prevents him from falling should he experience tremors or balance problems.

Sak claims that Snickers is a sweetie, with absolutely no history of aggression. Unfortunately, that didn’t stop 36 residents of Aurelia from signing a petition to enforce the city’s pit bull ban against Snickers.

The northwest Iowa town of Aurelia has a population of only 1,100, so when 36 townsfolk get together to do anything, the city council tends to listen.

Sak and Leifer were asked to attend an Aurelia City Council meeting on Nov. 21, 2011, to answer why the city’s ordinance prohibiting the possession of a pit bull should not be enforced against Snickers. Sak and Leifer brought Snickers to the meeting. While his fate was being debated, Snickers sat quietly at their feet, crying or whining quietly at the mention of his name.

Despite the uncontradicted testimony that Snickers was critical for Sak’s physical and emotional well-being, the city council on Dec. 14 voted 3-2 to ban Snickers from the town.

But Sak was not about to let Snickers go without a fight. While boarding his dog out of town, Sak filed a motion for a preliminary injunction in the U.S. District Court for the Northern District of Iowa, contending that the city’s pit bull ban and refusal to grant an exception for Sak’s registered service animal violate the “public entities” provisions of the Americans with Disabilities Act (ADA).

The city countered that there was no violation of the Act because its ordinance does not prevent Sak from having a service animal of a different breed.

U.S. District Judge Mark Bennett rejected the city’s argument and granted Sak his requested preliminary injunction on Wednesday.

“When a service dog is excluded by a city’s breed-specific pit bull ban, that dog might have a problem but for Congress’s passage of the ADA and the Attorney General’s regulations and guidance on service dogs and breed limitations,” the judge explained. “The ADA was enacted ‘to provide a clear and comprehensive national mandate for the, elimination of discrimination against individuals with disabilities.’ Included within this mandate was Congress’s intention to ensure that disabled individuals, like Sak, are not separated from their service animals.”

The judge concluded that, “whatever the legal bark of the City’s Ordinance prohibiting pit bull dogs as a general matter of public health and safety, it is sufficiently likely that enforcement of that Ordinance against Snickers would take such an impermissible bite out of Title II of the ADA and the regulations and guidance promulgated to implement it that a preliminary injunction is warranted.”

In addition to finding that enforcement of the ordinance against Snickers “is causing and will cause irreparable harm to Sak,” Judge Bennett observed that “the public interest in allowing Sak to keep and use his certified and registered service dog, Snickers, substantially outweighs the City’s interest in banning Snickers. This is one small, but vital step for Sak, one giant leap for pit bull service dogs.” (Sak v. City of Aurelia)

So 2012 starts on a heart-warming note, with Snickers back home. Although Judge Bennett has yet to issue his final ruling on the matter, his ruling in favor of injunctive relief certainly suggests a happy ending for Sak and Snickers.

– Pat Murphy

patrick.murphy@lawyersusaonline.com

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