What Does it Mean for Delta's Pit Bull Ban? - Discussion
Enforcement Priorities
On August 8, the Department of Transportation (DOT) issued a final statement of enforcement priorities regarding service animals. Later this year, the DOT is expected to issue a Notice of Proposed Rulemaking (NPRM) which will address the "appropriate definition of a service animal" and "include safeguards to ensure safety and reduce the likelihood that passengers wishing to travel with their pets on aircraft will be able to falsely claim that their pets are service animals."
The enforcement priorities come after Delta and other airlines adopted new policies after the period of the Advance Notice of Proposed Rulemaking (ANPRM) seeking comment on amending the Air Carrier Access Act (ACAA) regulation of service animals ended on July 9, 2018. Delta had announced in June that starting on July 10, 2018 it would limit each passenger to one emotional support animal per flight and would prohibit pit bull-type dogs as service and support animals.
The DOT's enforcement priorities primarily address the new policies adopted by airlines since early 2018. These policies attempt to tackle the growing number of fake service and emotional support animals (ESAs), but primarily the growth of untrained ESAs flying in the cabin. The sole function of an ESA is to "provide comfort" for a person with disabilities. ESAs are not trained to perform a specific task and have no protection under the American Disabilities Act (ADA).
In June 2017, a Delta passenger was repeatedly attacked in the face by an untrained psychiatric service dog. In May 2019, the victim sued Delta and the dog's owner, intensifying this issue.
The DOT's enforcement priorities address airline policies containing breed restrictions, species restrictions, weight restrictions, age and number of service animal restrictions, flight-length restrictions, letter and form requirements for ESA and psychiatric services animals (PSA), form requirements for service animals (non ESA and PSA), as well as requirements for passengers with ESAs or PSAs to check into the ticket area (also called the "lobby") prior to their flight.
Airlines have until mid-September to adjust any policies that are out-of-step with the Enforcement Office's interpretation of the current rule, of which parts remain undefined and may continue to be undefined when the DOT issues its NPRM regarding the "appropriate definition of a service animal" later this year. The DOT guidance is "not legally binding in its own right" and conformity with the guidance (as distinct from existing statutes and regulations in Part 382) is voluntary only.
The Current Rule
The current rule (within the Foreign Carriers NPRM) was enacted in 2008, and is also called Part 382. It amended the Air Carrier Access Act in areas, including the transportation of service animals. However, of the total 1290 comments received for the Foreign Carriers NPRM, over 1100 (85%) regarded service animals. The DOT's final statement of enforcement priorities reflects the existing statutes and regulations in Part 382, as well as provides interpretations of them.
The goal of the DOT's final statement of enforcement priorities is to inform the public and airlines about policies that are in violation or are "inconsistent" with Part 382, and thus may be subject to potential enforcement. However, as the DOT admits in the guidance, there are still undefined areas in Part 382. Specifically, how airlines may (or may not) assess whether or not a service animal (including ESAs and PSAs) poses a "direct threat to the health or safety of others."1
Delta's Pit Bull Ban
On page 25, the DOT summarizes their enforcement priorities. The first item is Species and Breed Restrictions. As gathered from parts of the DOT's guidance statement, "the Department is not aware of and has not been presented with evidence supporting the assertion that an animal poses a direct threat simply because of its breed" and "The Enforcement Office continues to take the view that restrictions on specific dog breeds are inconsistent with the current regulation."
Delta's view is that "untrained, pit bull-type dogs posing as both service and support animals are a potential safety risk." Delta also stated at that time, "We must err on the side of safety." That was their legal understanding of the ACAA in June of 2018. Not coincidentally, Section 382.117(f) of the current rule does not define how airlines can assess if a service or support animal presents a "direct threat to the health or safety of others" -- possibly an invitation to Delta's interpretation.
On September 23, 2019 Delta announced it is continuing its pit bull ban, stating: "Pit bulls account for less than 5 percent of the overall dog population but 37.5 percent of vicious dog attacks."
§ 382.117(f) "You are never required to accommodate certain unusual service animals (e.g., snakes, other reptiles, ferrets, rodents, and spiders) as service animals in the cabin. With respect to all other animals, including unusual or exotic animals that are presented as service animals (e.g., miniature horses, pigs, monkeys), as a carrier you must determine whether any factors preclude their traveling in the cabin as service animals (e.g., whether the animal is too large or heavy to be accommodated in the cabin, whether the animal would pose a direct threat to the health or safety of others, whether it would cause a significant disruption of cabin service, whether it would be prohibited from entering a foreign country that is the flight's destination).2 If no such factors preclude the animal from traveling in the cabin..." - 14 CFR § 382.117(f)
While many newspaper headlines stating, "Delta can't ban pit bulls" and the "DOT rejects Delta's pit bull ban" appeared after the DOT's enforcement priorities was published, the issue is not necessarily so black and white. The DOT simply stated, "The Enforcement Office intends to use available resources to ensure that dogs, cats, and miniature horses are accepted for transport," meaning all dog breeds. Below are areas in the DOT guidance that discuss a "direct threat."
"In the Interim Statement, we explained that airlines may refuse transportation to any service animal that poses a direct threat to the health or safety of others. We observed, however, that our service animal regulation does not explain how airlines may (or may not) make that assessment" ...
"As we explained in the documentation section above, Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat, but the rule does not clearly indicate how airlines must make that assessment" ...
"In general, it is not clear whether airlines are violating Part 382 if they require additional documentation to determine whether a service animal poses a direct threat. Part 382 permits airlines to determine, in advance of flight, whether any service animal poses a direct threat. However, that section is not clear about how airlines would determine whether an animal poses a direct threat to the health or safety of others" - Guidance on Nondiscrimination on the Basis of Disability in Air Travel, U.S. Department of Transportation, August 8, 2019
On May 23, 2018 Delta authored their comments for the Advance Notice of Proposed Rulemaking (ANPRM). Delta stated within them: "Absent an approach that clearly demonstrates an animal can behave properly, airlines should be able to impose breed restrictions to ensure passenger safety."3 On June 20, Delta announced that starting on July 10, it would limit each passenger to one support animal per flight and prohibited pit bull-type dogs as service and support animals.
"To address operational issues, airlines should be permitted to require documentation of (a) the passenger's qualifying disability by a licensed medical professional, (b) behavioral training of the service animal, and (c) veterinary health records. Airlines should be permitted to require this documentation 48 hours in advance of a flight to provide opportunity to effectively evaluate the documentation. This approach is similar to the "Pet Passport" adopted by European Union countries. Absent an approach that clearly demonstrates an animal can behave properly, airlines should be able to impose breed restrictions to ensure passenger safety." - Delta Air Lines, May 23, 2018
In July, (prior to the DOT's new guidance), Delta defended their ban and threw some chilly water on a potential ruse.4 Delta denied a woman who tried to reserve a Delta flight to fly a pit bull-mix service dog to its client (the disabled client was not flying with the dog). When the woman protested and said, "that's discrimination, that's illegal," Delta allegedly replied, "No, we have lawyers on standby. We wouldn't do this if there were any legal issues that could arise."
The fact is, we don't know how Delta will respond policy-wise to the DOT's final enforcement priorities. It is also unknown if the "direct threat" issue will be addressed by the DOT later this year. We just know that policy adjustments are due in September. We also know that Part 382 does not explain how airlines may (or may not) make a direct threat assessment and that Delta believed when banning pit bull-type dogs as service and support animals, it was legally sound.
Learn why breed matters in service dogs and why pit bull service dogs are a bad idea. Primarily, pit bull "breed advocates," not advocates for the disabled, promote pit bulls as service dogs.
Military Breed Bans
A decade ago, the U.S. Army, U.S. Marine Corps and U.S. Air Force banned pit bulls and several other dog breeds from privatized housing. The Marine Corps order states, in part: "Pit bulls, rottweilers, canid/wolf hybrids, or any canine breed with dominant traits of aggression present an unreasonable risk to the health and safety of personnel in family housing." The DOT is misleading by stating there is no evidence that a dog "poses a direct threat simply because of its breed."
For federal precedent, the DOT needs to look no further than the United States Armed Forces for this evidence. Furthermore, at Camp Lejeune -- one of the largest U.S. Marine Corps bases in the country -- service dogs must be evaluated annually by the Department of Animal Control Office (DACO) and must pass an evaluation test in order "to be recognized as a service dog aboard the installation." Delta is not in the animal control or animal behavior business -- no airline is.
Developing Standards
Currently, the DOT is allowing airlines some tools to assess behavior in ESAs and PSAs, including a signed Veterinary Health Form (proof of rabies and distemper vaccinations), a signed Confirmation of Animal Training form and a signed letter from a licensed mental health professional stating the passenger has a mental health-related disability. But Delta wants more than this. Delta wants the DOT to "develop clear and consistent standards" that a dog is trained.
"Reduce abuse and fraud by clarifying and simplifying regulations to the greatest extent possible. The multiple categories with different standards and guidance do not serve passengers with disabilities or airlines well. The DOT should establish one category of service animals to accommodate any trained service animal providing assistance to a person with a qualifying disability. DOT must develop clear and consistent standards and processes for determining that a dog is trained and establishing that a person has a need for the service animal to prevent fraud and abuse. Reform should also limit the definition of service animals to dogs." - Delta Air Lines, May 23, 2018
Loophole in Current Rule
The ADA defines a disability as "a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment." Section 382.117(e) of the current rule, however, states that passengers with ESAs or PSAs must only have a "mental or emotional disability recognized in the Diagnostic and Statistical Manual of Mental Disorders - Fourth Edition (DSM IV)."
Airlines for America, a trade organization, states in their DOT comments: "Section 382.117(e)(1) refers to passengers that have a 'mental or emotional disability recognized in the [DSM],' but does not refer to 'any disorder (or condition) identified in the DSM.' However, a disorder is not synonymous with a disability; not all disorders manifest in a functional impairment that would be considered a legal disability, and the DSM lists many disorders that are not disabilities."
"This is not merely a technical distinction, on the contrary, it is a gaping loophole that all but invites tens of millions of non-disabled passengers to claim the need for an ESA accommodation," Airlines for America states. "DOT's conflation of medical 'disorders' and 'conditions' identified in the DSM with the legal concept of 'disability' has created confusion and facilitates fraud."5 The DOT's unwitting language is in part why fake ESA certification websites can legally flourish online.
"According to research published by the National Institute of Mental Health, an estimated 18.1% of Americans age 18 and older, suffered from a diagnosable mental disorder in 2014 ... with an average of 26.2% in any given year .... This begs the question as to whether an individual has a mental health-related disability listed in the DSM–5, and whether the animal in question alleviates the person's mental health symptoms in some way if accompanying the person while flying. One can argue that one in four adults could realistically qualify for an ESA. As illogical as it may seem, this would imply the ACAA would allow up to one fifth to one-quarter of passengers to potentially bring their pets on board the plane if needed."6 - Boness C. L., Younggren, J. N. & Frumkin I. B., 2017.
Summary
We do not know how Delta will respond policy-wise to the DOT's final guidance of enforcement priorities regarding their pit bull service and support dog ban. We do know that on June 22, 2018, two days after Delta announced their ban policy, the Enforcement Office issued a public statement indicating its view that "a limitation based exclusively on breed of the service animal is not allowed under the Air Carrier Access Act." Delta implemented their ban policy three weeks later anyway.
If the DOT were to develop "clear and consistent standards" for determining whether a dog is trained that the airlines could follow, along with revising the "gaping loophole" in the current rule that conflates medical "disorders" and "conditions" identified in the DSM with the legal concept of "disability" -- which ushered in an era of a massive number of non-disabled passengers claiming the need for an ESA accommodation -- perhaps Delta would not need the blunt tool of a ban.
Passengers too often bring aboard flights animals that should not be on an airplane. This must stop. https://t.co/yqb9t3l0iS via @DawnGilbertson @USATODAY @afa_cwa
— Sully Sullenberger (@Captsully) July 26, 2019
2"Too large or heavy to be accommodated in the cabin" is another area the DOT refuses to define and declared one airline's ban on ESAs and PSAs over 65-pounds as "inconsistent" (not the heavy language of a "direct violation") with Part 382.117. The airline was clearly trying to protect passengers from large untrained ESAs and PSAs. Their imposed "weight limit" did not affect real or "fake" service animals.
3Comments of Delta Air Lines, Submitted July 10, 2018 (DOT-OST-2018-0068-4141), Dated May 23, 2018 | Docket No. DOT-OST-2018-0068.
4A ruse "stresses an attempt to mislead by a false impression," according to Merriam-Webster. There are many "fake" scenarios invented by pit bull advocates to promote "fake" pit bull service and support dogs. This one fits the bill. Not that there was a fake disability, but it is likely people involved knew about Delta's ban and knew the dog would get rejected by Delta, thus producing a few news stories. On top of that, the rescue, Help a Dog Out Rescue in Mesa, was blasted by a pit bull lover for being "shady" for trying to pass this dog off as "not a pit."
5Comments of Airlines for America, Regional Airline Association, and
International Air Transport Association, Submitted July 10, 2018 (DOT-OST-2018-0068-4288), Dated July 9, 2018 | Docket No. DOT-OST-2018-0068.
6Cassandra. L. Boness, Jeffrey.N. Younggren & I. Bruce Frumkin, The Certification of Emotional Support Animals: Differences Between Clinical and Forensic Mental Health Practitioners, Prof. Psychology: Research and Practice, 2017, Vol. 48, No. 3, 216–223.
Related articles:
06/04/19: Delta Passenger Attacked in the Face by a Large "Support" Dog Sues Airline...
03/04/19: Mother of Child Mauled by an 'Emotional Support' Pit Bull at Portland Airport Sues
07/05/18: Why Breed Matters in Service Dogs and Why Pit Bull Service Dogs are a Bad Idea
06/23/18: Delta Bans Pit Bull-Type Dogs as Service, Support Animals in the Cabin
01/25/18: Delta Tightens Reins on Untrained 'Support' Dogs in the Aircraft Cabin
07/14/17: Delta Passenger is Severely Attacked by an Unrestrained Emotional Support Dog
One of the main problems with all this legislation is that “service dogs” and “support animals” are NOT the same thing.
A service dog performs services. It is trained to see for someone, or hear for them, or calm them in a state of agitation, block people from touching the owner. balance them, or warn them of a seizure etc. They have actual jobs. This dog is a professional dog that needs to perform “at least three meaningful tasks” in the completion of its duties. It also must be trained to a high degree of obedience and be temperamentally sound.
A support dog is an emotional support for someone whose mental state may be fragile. It provides no service other than “being there”, may not be even adequately trained in basic obedience. This role may be filled for some people by a friendly cat, ferret or parrot. This has to do with doctors signing certificates for fragile patients so they don’t lose their pet due to housing restrictions.
Where this all falls apart is that most countries only a require a Doctor’s certificate to certify that an owner needs this animal for one role, or the other. Most doctors may be able to qualify what is needed for their patient. They’re *not* qualified to determine whether the dog’s functions in its role, sufficiently.
There’s many ways to solve this problem. One would be legislation around what qualifies as a service dog and where such dogs are to be tested and by whom. Another would be to allow service dogs, but not support dogs, on airplanes. Right now, support dogs aren’t allowed in any place that serves food so why are the airlines, allowing them on board? Only proven service dogs can go wherever if the owner has a doctor’s certificate.
I understand many disabled people cannot afford to purchase, or have no access to, proper service dogs. The waiting lists are huge.
However, the dog, at the beginning and end of training, at the very least needs to be seen by someone qualified to assess the dog’s capabilities.
Just sticking a vest on Petey The Pitbull does not qualify it as a service dog. It’s just too risky.
Thanks for the detailed examination of this issue. What I never see addressed by the legal authorities is the definition of “pet” or any realistic psychological assessment of what it means to desire the company of an animal. Specifically, while the ADA expressly excludes emotional support, comfort, and companionship from its definition of “service animal,” these effects are nevertheless continually being invoked to confer some special status on a pet (e.g., “emotional support animal,” “comfort animal,” “therapy animal”).
But these effects of comfort, emotional support and companionship, it seems to me, are simply what define a “pet” (as opposed to, say, livestock) and merely describe the bonding that can develop between human beings and other species. They do not confer anything more special than what is meant by “pet” in the first place. So the repeated efforts of both the authorities and some pet owners to carve out some niche between “pet” and and a strictly defined “trained service animal” just strike me as misguided and bound to result in all kinds of pernicious — and dangerous — situations.
Thank you for this very, very detailed update. When will the government stop forcing dangerous animals on the people? Not likely within my lifetime, at the rate that they are coming at me.
Federal and local governments are, in practice, openly forcibly pro- dangerous animal, and openly forcibly pro- people maiming/death. There is no avoiding dangerous canines, and no defense against dangerous canines in our society except possibly inside your own home and Church. Even your ungated property is unsafe from physical and legal attack. This problem will be solved for me only when God much belatedly answers my repeated, fervent prayers to take my working breed canine afflicted soul to Heaven.
The entire ADA needs to be abolished. The ONLY animals that should be considered real service animals should be guide dogs for the blind, anything else should be approved on a case by case basis and only for physical disabilities, since we have drugs and therapies for mental and emotional conditions. Of course all weaponized breeds should be ineligible- pit bulls and mixes, rottweilers, mastiffs, Caucasian mountain dog, belgian malinois for starters.
At the very least, there should be some objective, physical verifiability to the service the animal is providing a human being. As I suggest above, the problem with getting into the emotional and psychological benefits that animals provide us is that it puts the government in the ludicrous position of determining who is more emotionally or psychologically bound to their companion animal.
This is tantamount to asking who loves their dog more? It’s an impossible standard.
Good question, Mike.
As someone who trained protection dogs back in the day and other sorts of dogs, here’s my take on it.
A dog that works with you is a junior partner. It’s not a pet. The bond that exists (and I’ve experienced this) is very, very different. Most owners have zero idea what that means because they have not experienced it. When your life is in the paws of a dog–it’s a very, very intense bond.
So, some folks assume that their emotional relationship to Fido is the same as someone whose ability to function or even their lives, is dependent on that dog.
I’ve had both pets and working dogs. With pets, mistakes are okay and there’s time to correct them. With a working dog there’s no such luxury. It must either be able to perform its function or be retired and replaced. When out in public–that dog must perform. It’s not there to grease the wheels of social commerce or wag its tail. It’s there to work.
It’s a working partner mindset that pet owners don’t have the experience to fathom.
It’s closer to the relationship between a farmer and his working horse.
Thanks for these insightful comments, Boni!
As a disabled individual I tend to agree the ADA should be heavily modified or scrapped. The ADA started out with noble goals but has turned into a windfall for lawyers, fakers and selfish dog owners.
We are constantly told that any sort of training or ID requirement for service dogs is a civil rights issue for the disabled. If I want to use a parking spot that is wide enough for me to get my wheelchair out of my van I have to have my Dr fill out a form and then I must display the placard when I park. If I can do that people with disabilities that choose to use a dog can submit to some kind of registration for those dogs. In Canada service dogs are registered. The honor system worked back when service dog meant seeing eye dog. Now there are so many conditions you can chose to use a dog for the honor system wont work.
Actually my friend, in some provinces, they’re not. Unless it’s changed in the last couple of years since I retrained a PTSD dog for someone when it decided to start sniffing around in grocery stores.
Oddly enough–therapy dogs have higher requirements.
One constant is though, that a service dog can be told to leave any premise if it is causing any sort of disturbance.
Also, the owner of said dog, must be carrying their doctor’s letter proving that this is indeed, a service dog if they try to claim it as one, say in a restaurant.
We have fakers here, too.
I do think it should be required to pass a Good Canine Citizen test, at the very least…and prove 3 mitigating behaviours that make the life of the disabled person, more manageable.
That seems a fair compromise, to me.
Can Delta use studies like this to defend their decision?:
https://wexnermedical.osu.edu/mediaroom/pressreleaselisting/study-identifies-dog-breeds-physical-traits-that-pose-highest-risk-of-biting-children
As a side interest, I enjoy reading about airliners. So many safety regulations but somehow people are allowed to bring poorly trained dogs on board. In extreme turbulence people can get bounced around the cabin. How fool hardy to add to that by allowing anxious dogs.
It’s the same thing at event venues. The days of dragging coolers and cookout gear into events are long gone.
My local event venue disallows any bag or purse larger than a person’s hand (which they search), forbids food or drink beyond a single factory-sealed water bottle, regularly confiscates keychains, and pats down everyone prior to entry.
YET! Can you bring in an intact male pit bull with a fake “service dog” vest on? How about a pit puppy who’s barely mastered housebreaking, let alone providing any service? But of course! These are just two examples of the multiple pits I’ve seen dragged into this place.
I want to come out a fake pit bull that is really a cooler. It would come with a service dog vest and harness and a don’t bully my breed bandana around its neck. It of course would appear to be unaltered.
You walk robo fido in to your concert or ball game. One you are seated open him up and enjoy cold drinks for the whole show. If anyone complains call them a racist.
This is a good point that I hadn’t considered. What is to stop a terrorist from bringing a dangerous dog on-board. It’s ludicrous that people can’t bring a water bottle on-board, because it could be weaponzied, but they are allowed to bring a far more dangerous pit bull on board.
Notice there are never headlines that say, “Murder Poodle Hijacks Plane and Eats Pilot?”
Just sayin’ 😉
As the UK based owner of a genuine Emotional Support Animal (esa), I’d like to point out that not all mental health problems can be solved by drugs or therapy. Charlie, my esa, is capable of detecting full blown episodes of paralytic anxiety several minutes BEFORE symptoms appear. ( these episodes generally cause me to lose consciousness) Although sedatives can prevent panic attacks, the human body quickly adapts to most sedatives hence eventually rendering them utterly useless. Early warning of episodes is definitely the preferable option! Especially as Charlie has legal status as a service dog due to a dispute over benefits with the government, throughout the tribunals hearing Charlie’s behavior (as I expected) was so exemplary that the judge ruled him to be a legal service dog, giving identical status to that of a guide dog. The biggest problem with Charlie? Shop staff and the public wanting to fuss/stroke him… But then Cavalier King Charles Spaniels are generally lovable !!
I’m all for service dogs and I realize that they’re expensive and the failure rate is huge for them.
I don’t hold the bias that a pro trainer must train the dog in every circumstance–although I do think it must be able to pass a behavioral and temperament test to be certified as a service dog.
I’d also strongly suggest that most people who want to train up a dog do seek a trainer that’s trained some service dogs, before, to see if the dog is temperamentally suited for purpose and to help them understand the amount of time and commitment needed, to train up a dog that can go everywhere and fit into every social environment.
People approaching *anyone’s* dog without asking permission need to just stop it. Right now. They’re a detriment to every kind of dog training out there.
And in the case of a service dog, they should just stay away.
But for some reason, the puppy wuppy crowd seem to think they have some kind of communal ownership to pet or annoy every dog they see. I know most people think that’s women but in my experience, it’s actually been more men that don’t bother to ask, first.
I understand your frustration.
Pit nutters complain the dogsBite Blog is discriminating against Pit Bulls and yet you identify all breeds when possible in each fatal attack! Keep up the good work! Truth matters!
I’m pretty sure it won’t just be headlines here but all the way around the world when someone is murdered by a pack of ferocious beagles.
Within minutes of the attack hitting Twitter there will be a GoFundMe page to Stop The Snoopy Hate and an entire lobby to complain that Beagles Are Discriminated Against By The Media.