Saturday, October 30, 2010

Don't Gibber While You Train

This is me in one of my first obedience classes with Chloe:

“All right, we’re going to do this, aren’t we? We’re going to listen to daddy and do this right and Rick will be impressed, won’t he. We want Rick to be impressed even if we don’t care what daddy thinks, do we. All right, here goes, are you listening? SIT!

Rick Manley of the Phoenix Field and Obedience Club scowled at me. “Ensminger, what are you telling the dog to do? If I can’t tell, the dog probably can’t either. Stop gibbering.”

I thought he was being a bit sensitive. It couldn’t have been that confusing. After all, I said SIT in a different and louder tone than everything else and I paused for a second or two before saying it. The gibbering was only my way of keeping the frustration of those early classes from getting to me. I also thought that the monologue might keep Chloe’s attention on me, something that didn’t come naturally to her back then.

Now there is scientific proof Rick was right.

Two researches videotaped 56 handlers giving the SIT command to see how verbal and nonverbal factors affected the dog’s response. The videotapes were made during obedience and agility classes in Switzerland and England. Dogs ranged from four months to nearly ten years old, but the mean age was two. A broad range of breeds were involved. Handlers were also of all ages.

The videotapes were studied to see whether the dogs watched the handlers giving the commands, whether the handlers watched the dogs, whether the handlers spoke other words or mumbled while giving commands, what movements the handlers made while giving commands, whether treats were given or handlers made motions suggesting they would give treats, and so on. As to the dogs, the researchers recorded whether the licked their lips, blinked, yawned, scratched, sniffed, turned their heads away from the handler, shook themselves, and so on. Even “proxemics” were recorded—a new word to me referring to the orientation and distance of the dog and handler.

The researchers recorded whether a command was obeyed, and whether it was repeated. They were particularly interested in the information conveyed to the dog in the few seconds before a command was actually given. Two factors were found to reduce a dog’s obedience: the animal not paying attention (no surprise), and the handler saying things other than the command before actually giving the command.

The researchers designed a separate study to look at the second finding, that additional verbiage reduced a dog’s obedience. Handlers were told to stand with their hands behind their backs and look straight ahead while giving a command to the dog, which was seated to the handler’s left. The handler was to do one of three things: (1) use the dog’s name followed immediately by the command, (2) use the dog’s name, pause for two seconds, then give the command, and (3) use a word the dog did not know (“banana”), followed by the command. The commands could be DOWN, PAW, or UFF (telling the dog to jump onto an elevated surface). Some dogs knew the commands they were given; for others, the commands were being taught.

Many handlers chat with their dogs “in quite a complex way,” like my gibbering. The researchers found that the name + two second pause and the novel word + command significantly decreased the correct response to the command. However, if the dog had fully learned the command, the use of the dog’s name, with or without a pause, did not significantly reduce the number of correct responses. Only the new word did. Thus, dogs found it particularly difficult to deal with a command they did not fully know when there was a new word preceding it. The researchers concluded that “responsiveness may be affected by non-informative verbiage preceding important information.” In layman's terms, don’t gibber before a command.

I’ve only summarized part of this interesting study. The researchers also concluded that dogs found changes in location difficult in learning new commands. They summarized: “Dog handlers should be aware of how different types of verbal information and the change of context can influence their dog’s responsiveness and of the extent to which dogs need to be taught to generalize command stimuli to novel contexts.” Braem, M.D., and Mills, D.S. (2010) Factors Affecting Response of Dogs to Obedience Instruction: A Field and Experimental Study. Applied Animal Behavior Science 125, (1-2), 47-55.

Saturday, October 23, 2010

Early Police Dogs in Belgium and New York

There could be said to be two strands in the origin of police dogs in the United States. Primarily in southern states, dogs were used for tracking escaped convicts and criminals after the Civil War, reaching judicial attention by the 1890s. These dogs, mostly bloodhounds, bayed at a suspects if they found them at the end of the trail, generally without biting. Bloodhounds were not then owned by the police departments, but rather were the property of private individuals, sometimes of prison authorities, and were borrowed for police work as cases required.

Police dog units existed in Europe by the end of the 19th century, beginning in the Belgian city of Ghent. A report in the New York Times, "The Police Dogs of Ghent, How They Are Trained to the Duties of Town Constables," says that there were 16 dogs by 1902, mostly Belgian shepherds. The dogs accompanied police on night shifts and were kenneled during the day. The Times article describes a four-month training program in which dogs were taught to seek, attack, seize, and hold "but without hurting seriously." Dogs were first trained to attack dummies put in positions of men trying to conceal themselves. After the dummy, a person was used, initially the dog's trainer so that it could be called off easily. The dog was muzzled at first to avoid serious injury. Bite suits, which began as thick clothing, soon became specialized training gear, as indicated in the photo dated 1911. The Times article reports that the dogs at the Ghent school were also taught to scale walls and even to jump into water to save people from drowning.

In his book, War, Police and Watch Dogs, published in 1910, Edwin H. Richardson includes a letter from Mayor van Wesenmael of Ghent requesting permission (from an unnamed authority) to obtain funds for police dogs. The mayor argued that the dogs would be particularly useful at night in patrolling "the outer zone and wood quarters." He noted that increasing the number of police for such patrols would be much more expensive than obtaining dogs, then states:

"I am not certain that a night policeman, who is acting in the suburbs, far from any help whatever, dare intervene when he sees a crime committed by several criminals. He cannot go as far and as fast as criminals, after being on duty for several hours. The criminal who has been meditating a crime dresses himself in a manner to be working as lightly as possible in case of flight. A dog works a long time on duty cheerfully, and he is able to follow a fugitive much more rapidly than a man. The dog is equipped with qualities of scent and hearing and can easily get into any place and examine it without his presence being suspected, and thus surprise the criminal, when the policeman in searching would probably be heard. If the burglar, thanks to his agility, succeeds n jumping over an obstacle or swimming away, a dog can stop him; the policeman would be hampered because of his heavy uniform, and perhaps he could not swim."

The mayor requested funds for ten dogs, but only expected to put three into service in the first year. Richardson visited police dog programs in Belgium, France, and Germany in 1909 and found that, while tracking dogs were being used in Germany, police dogs in Belgium and France were at the time largely used in patrol work. The picture of the police dog kennel at Ghent is taken from Richardson's book. The last picture, also from Richardson, shows a Ghent police handler with a dog fitted with a raincoat.

A 1907 report of the U.S. Consul General in Antwerp, H.W. Diederich, says that by that year the police in Antwerp had seven dogs used to patrol a dangerous section of the city around the docks and basins. Also in 1907, the police departments of New York City and South Orange, New Jersey, began assigning dogs to policemen. These dogs were primarily used to protect officers on patrol and to apprehend suspects, mostly by what would now be called a “bite and hold” method. The New York City police dog program was in part based on the Ghent program. A Lieutenant Wakefield of the NYPD visited Ghent to study the city's experience and returned to New York with two dogs purchased from the Ghent police force. By 1910, German trainers knew of the American use of dogs to track slaves over long distances, but in training often used trails of 300 meters or less.

Sources: Hodge v. Alabama, 98 Ala. 10, 13 So. 385 (1893); C. George and L. George, Police Dogs, 10 (Capstone Press 1998); Science Siftings, The Police Dogs of Ghent, The New York Times (November 9, 1902); Police Dogs at Antwerp, The School Journal, 344 (October 19, 1907); F. Schmidt, Vebrecherspur und Polizeihund (Augsberg 1910); Polizeihund-Erfolge und Neue Winke fur Poizheihund-Furher, Liebhaber under Behorden (Augsberg 1911) (at 42: "aufstandige un dem Sklavendienst entfliehende Neger bedieten"); S.G. Chapman, Police Dogs in North America (CC Thomas 1990); Belgische Schaferhund (; E.H. Richardson (1910), at 11 et seq.,37. War, Police and Watch Dogs. William Blackwood and Sons. Edinburgh and London; Axel Van der Borght (personal communication, October 25, 2010); T.F. Jager (1917). Scout, Red Cross and Army Dogs (Arrow Printing Co. New York) (noting, at 45: "Police dogs were first tried out and the idea seems to have originated in the town of Ghent, Belgium, the idea first being merely to have a dog accompany the officers on their rounds at night, probably more as a companion than anything else, although the dogs were trained to attack any one upon whom they were set by the officer.").  Gaston de Vael (1907).  Le Chien Auxiliare de la Police: Etude Critique et Manuel de Dressage. Bruxelle: VanBuggenHoudt.  Jean van de Putte (1907). Le Chien de Guerre et Le Chien de Police.  Bruxelles: VanBuggenHoudt. 

Addendum. The comment below is correct. An article from the New York Times of January 19, 1908, The Five Canine Candidates for Police Honors, Who Have Been Absorbing Wisdom in a Select School, are Ready for Business and Promise to Make Things Lively for Criminals, describes Wakefield's travel to Ghent and his efforts to bring back dogs. The article can be retrieved by searching the New York Times archives. The commenter may have additional information but comments to the blog do not come in with email addresses. I can be reached directly at

Thanks to Axel Van der Borght for several sources used here, and to Jeff Meyer for connecting me with Mr. Van der Borght.

Tuesday, October 19, 2010

Should a Bomb Dog's 'Interest' Give Probable Cause to Search A Car Near Protests at an International Conference?

In November 2003, 34 nations gathered in Miami for a summit of the Free Trade Area of the Americas (FTAA). Expecting mass demonstrations, the Miami Police Department (MPD) closed roads and businesses and solicited the assistance of dozens of other law enforcement agencies. MPD had reason to worry. Two years before an FTAA summit in Quebec had resulted in injuries to 101 police officers. MPD had received over 30 bomb threats related to the summit.

On November 19, 2003, David Lippman, a freelance reporter, parked his Nissan pickup in a parking garage at 190 Northeast Third Street near a concentration of government buildings. The police regarded the location as a potential bomb target. An explosives detection dog showed interest in the vehicle without performing a full alert. A sergeant in the bomb squad team decided that in light of the high security environment for the FTAA event, probable cause and exigent circumstances justified a search of the vehicle. An FBI robot was used and an explosives detection expert also put on an 80 lb. protective bomb suit to assist in the search. No bombs or improvised explosives devices were found and an all-clear announcement was made.

Lippman’s vehicle was suspected because Lippman had been seen running from it and then hailing a taxi. Lippman later explained that he was trying to get to a particular FTAA panel discussion that was about to begin. The federal district court determined that there was no arguable probable cause to search the vehicle and no emergency justifying searching the vehicle without a warrant.

“As a matter of law, the Court finds that it is not reasonable for an officer to conclude that a K-9 unit showing interest in a vehicle is equivalent to an alert by a trained dog. To begin, the caselaw holds that an alert is the trained response by a dog when confronted with the presence of the target odor, whereas an interest is a lesser behavior change.” See, e.g. U.S. v. Jacobs, 986 F.2d 1231 (8th Cir. 1993). The court said that a behavior change, such as showing interest, might be combined with other evidence to provide probable cause, citing U.S. v. Munoz-Nava, 524 F.3d 1137 (10th Cir. 2008) (defendant wearing overly large boots which bulged added to drug dog’s interest to provide probable cause to detain). Here, the only evidence the police had to add to the dog’s interest were general concerns about the FTAA summit, and the fact Lippman had an unrelated criminal history.

The district court denied most of the defendant officials’ motions to dismiss and ordered that the action proceed. Lippman v. City of Miami, 2010 WL 2836713 (S.D.Fla. 2010).

The court relied on law from drug dog cases in reaching its conclusion. A policy question might be asked as to whether there could be a different probable cause threshold when a bomb dog shows interest as opposed to a drug dog. Airline luggage that is checked is to be screened by an explosive detection system or other technology, by a manual search, by a bag-match program, or by a canine explosive detection unit “in combination with other means.” 49 U.S.C. 44901(e). No such legislative requirement exists for screening luggage for narcotics.

Explosives detection dogs are expected to meet rigorous standards (often 95% proficiency as compared to 90% for narcotics detection), yet are also expected to work in very difficult environments. The grainy photograph shows one of the first experimental bomb dogs being trained in the snow in Minnesota in 1972. I would hate to be in charge of a police unit when thousands of lives are at stake and a dog’s behavior is unclear. A drug dog trainer once told me, “Sometimes you just wish the damn dog would make up his mind.” Most detection dog handlers probably feel the same way from time to time.

Addendum. I've received several emails criticizing this post for (1) not answering the question posed by the title, and (2) suggesting the answer is that some lower probable cause threshold should apply to explosives detection dogs than applies to narcotics detection dogs. I admit to these failings. I do not believe there should be a different threshold for explosives detection, though I think an argument can be made that reliance on a dog's behavior can vary depending on factual circumstances, as the court acknowledged. That said, if I were a police supervisor in the situation that arose here, barely two years post 9/11, and I had any suspicion that the dog's interest was due to careful packaging of the explosives, I would probably open the car and hope that immunity would limit the liability on my employer, my staff, and last and least, myself. A headline reading "Police Suspected Bomb Laden Car but Feared Violating Owner's Rights" would not be the sort of clipping posted proudly on the lunchroom wall.

Friday, October 15, 2010

Will Complying with Federal Rules for State Services Encourage States to Drop Separate Laws on Service Animals?

Thirty years ago I practiced as a civil rights lawyer and sometimes still hear from those who knew me in that world. Last week one of my former colleagues asked me why I hadn’t seen that the new Department of Justice rules on service animals will bring about a sea change in state laws about service animals—basically making them irrelevant. He argued that Justice’s rules under Part 35 (not the rules under Part 36 that I blogged about on September 15) mean that federal rules now cover the waterfront of service animal access law.[1]

It seemed to my former colleague that the Obama administration had effectively federalized the regulation of service animal access rules. First, even if there is truth to this, and there is some, the rules were proposed during the Bush administration (on June 17, 2008), to give credit where credit is due.[2] Democrats cannot take sole credit for helping the disabled, nor should they take all blame for creeping federalism.

Second, there are aspects of state law that are not covered by federal rules. State laws, for instance, often allow access to trainers of service animals, an issue seldom mentioned in the federal rules.[3] (This is true of more than half the states. See Chapter 15 of Service and Therapy Dogs in American Society.) Nevertheless, as I’ve noted several places, many states have tended to adopt federal rules, and even where they have not specifically adopted them, will cite them with state statutes in enforcement procedures. The inclusion of service animal rules in Part 35 is likely to increase this tendency to merge federal philosophy into state enforcement.

Let us look at what the new rules that apply to state and local governments will actually mean for them and the users of service animals.

The definitions section of Part 35 adopts the same definition of “service animal” provided in Part 36 and is worth quoting in full:

Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.[4]

The Part 35 provision on access to areas of a public entity refers to “participants in services” rather than “program participants” or “clients,” but the intent is identical. Miniature horses get the same break as well when coming into public entities.[5]

In the preamble to the Title II (Part 35) changes, the Department of Justice notes that although Title II regulations did not refer to service animals previously, “title II entities have the same legal obligations as title III entities to make reasonable modifications in policies, practices, or procedures to allow service animals when necessary in order to avoid discrimination on the basis of disability….”[6] Thus, the Department may see the obligations of state and local governments regarding service animals as already existing and only confirmed by the final rules now issued. If so, this could not easily be gathered from the regulations that apply to public accommodations. The preamble to the 1991 DOJ rules on public accommodations explicitly stated that “[p]ublic entities are excluded from the definition of private entity and therefore cannot qualify as public accommodations under this regulation.”[7]

Public Entities

Although referring to state and local governments in the title to the release, the rules apply to public entities and facilities which are operated or owned by such governments, not to everything state and local governments may themselves regulate. Thus, if state law on service animals is inconsistent with federal law, as is true in many cases,[8] the governments may have different obligations as to entities they operate as opposed to entities they regulate. (Aside from the previously mentioned tendency to merge federal and state rules in state enforcement proceedings.)

A public entity is defined as:

(1) Any State or local government;

(2) Any department, agency, special purpose district, or other instrumentality of a State or States or local government; and

(3) The National Railroad Passenger Corporation [Amtrak], and any commuter authority (as defined in section 103(8) of the Rail Passenger Service Act).[9]

Thus, state and local governments and anything they run are required to comply with the new service animal requirements. This could include parks, courthouses, government office buildings open to the public, public recreation facilities and play areas, etc.

Breed Limitations and Inconsistent Local Laws

As noted in my blog of September 15, the Department of Justice did not accept breed limitations for dogs. This is true in both Parts 35 and 36. This does not mean that a public entity must accept aggressive animals. The Department changed some wording in its proposals to make this clear. The proposal had allowed, as had the 1991 regulations on public accommodations, for a dog that provided “minimal protection.” This was changed to “non-violent protection” in the final rules. Alerting to “intruders,” also in the language of the 1991 public accommodation regulations and specifically concerning hearing or signal dogs, was changed to “the presence of people or sounds,” to clarify that a dog that might attack intruders was not what the Department had in mind.

Thus, an individual with a pit bull service animal does indeed have a service animal and the public entity, despite being operated by a state or local government with a pit bull ban, would have to accept the animal. The regulation would, however, not preclude the state or local entity from excluding pit bulls that are not service animals, or for that matter, excluding pit bulls that are service animals but are out of control.

Out of Control. Commenters to the 2008 proposed rules had noted that excluding a service animal that is out of control might be unfair where the animal has been provoked. The Department acknowledged that “misbehavior in response to provocation is not always unreasonable.”[10] This creates a certain duty on the public entity:

In circumstances where a service animal misbehaves or responds reasonably to a provocation or injury, the public entity must give the handler a reasonable opportunity to gain control of the animal. Further, if the individual with a disability asserts that the animal was provoked or injured, or if the public entity otherwise has reason to suspect that provocation or injury has occurred, the public entity should seek to determine the facts and, if provocation or injury occurred, the public entity should take effective steps to prevent further provocation or injury, which may include asking the provocateur to leave the public entity.[11]

State and local governments will have an obligation to explain how these rules create responsibilities for government employees, responsibilities that may not exist under state statutory law. Some states criminalize interference with a service animal, and state employees will sometimes have an obligation to inform law enforcement authorities about such instigators.

The preamble to the 2010 rules notes that commenters had argued that public entities should be careful in asserting a “fundamental alteration” as a reason for excluding a service animal. Thus, an animal should not be excluded for barking in an environment where noise is tolerated, such as a rock concert. The preamble states that “the appropriateness of an exclusion can be assessed by reviewing how a public entity addresses comparable situations that do not involve a service animal,” presumably agreeing with that a city-owned rock concert venue should not be able to exclude a dog that barks since it will not exclude a fan who yips, barks, and makes other ridiculous noises. (I am showing my age here.)

Service Animals as Dogs (and Miniature Horses)

In writing about the Part 36 regulations on September 15, I said that monkeys lost. In the preamble to the Part 35 regulations, the Department notes that under the Fair Housing Act, an individual with a disability may have a right to have an animal other than a dog in his or her home. The Department notes that this may conflict with state or local law, but that a request for reasonable accommodation under state or local law must be made under the Fair Housing Act (administered by the Department of Housing and Urban Development).

Zoning law, for instance, might preclude a pot-bellied pig from being in a neighborhood if the pig is classified as livestock not allowed in a residential area. If the pot-bellied pig were to be brought into a public entity, the owner could be excluded under Justice’s rules because only a dog is a service animal (and a miniature horse is something like a service animal). If state law is more expansive as to breeds that can be service animals, the zoning ordinance might also be attacked under that law. This is one case where separate state laws still have a function when they differ from federal rules.

Emotional Support Animals

In distinguishing emotional support animals from psychiatric service animals (which it sees as service animals), the Department of Justice notes that it “believes … that the presence of [emotional support] animals is not required in the context of title II entities such as courthouses, State and local government administrative buildings, and similar title II facilities.”[12] Thus, although you can take your emotional support animal on a plane, you can’t take it to the courthouse or local park with a no-pets rule, again unless some relief is provided under state or local assistance animal law.

As already noted, states that have restricted the definition of service animal to functions involving physical disabilities will now have to apply, in public entity contexts, federal rules treating psychiatric service animals as full-fledged service animals. This is likely to be the most significant change brought about by the Part 35 amendments.


The preamble to Justice’s 2010 rules states that “[a]irports operated by public entities are not subject to DOT’s ADA regulation, but they are subject to subpart A of title II and to this rule [i.e., to 28 CFR Part 35].”[13] Of course, this is why a person with a service monkey might be able to take it onto an airplane (under DOT Air Carrier Access Act rules), but not into a facility in the airport (because it is not a service animal under DOJ rules). This also means that airports owned by a state or local government are obligated to accept psychiatric service animals into their facilities.

Rail and Bus Transportation

The Americans with Disabilities Act, subchapter II, covers public services.[14] Part A of subchapter II provides rules as to public entities, while Part B applies to public transportation provided by public entities. Public entities include Amtrak and any commuter authority (as defined in section 24102(4)[15] of title 49).[16] The 1991 DOJ regulations provided that to “the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA (42 U.S.C. 12141), they are not subject to the requirements of this part.”[17] The preamble to the 2010 regulations explains that this means that public transportation services under 49 CFR Part 37 are not covered by the Justice rules of 28 CFR Part 35.

The preamble to DOJ’s 2010 rules elaborates that the “DOT rules apply only to the entity’s transportation facilities, vehicles, or services; the DOJ rules may cover the entity’s activities more broadly.”[18] An example of what this means was provided in the 1991 regulations.

For example, if a public entity operates a transit system and a zoo, DOT's coverage would stop at the transit system's edge, while DOJ's rule would cover the zoo as well.[19]

This presumably would also apply to any facilities run by public entities inside of train stations. Some rail and bus systems are publicly owned and the transportation authorities will often have to enforce service animal rules of both the Departments of Transportation and Justice for different aspects of their operations.

Unusual Service Animals. In the preamble to the 1991 release which contained the original service animal requirements under 49 CFR Part 37, DOT elaborated:

Service animals shall always be permitted to accompany their users in any private or public transportation vehicle or facility. One of the most common misunderstandings about service animals is that they are limited to being guide dogs for persons with visual impairments. Dogs are trained to assist people with a wide variety of disabilities, including individuals with hearing and mobility impairments. Other animals (e.g., monkeys) are sometimes used as service animals as well. In any of these situations, the entity must permit the service animal to accompany its user.[20]

Thus, in enforcing rules in transportation facilities they operate, state and local governments are going to have to determine which federal law must be complied with. Because the Department of Transportation has been more accepting of unusual service animals, such as monkeys, state officials may have to consider that someone getting off a train may be entitled to have the monkey, even if she need not be admitted to a restaurant in the station covered by Department of Justice rules.


My friend from my civil rights era had a good point, and I acknowledge that I was slow to see the full significance of it. State governments are likely to see maintaining separate laws on service animals as something of a burden in the face of the federal rules applying to state and local government services. On the other hand, since only those laws that are more expansive than the federal rules can be enforced in most contexts, state governments may determine that they will, for instance, allow service monkeys into their facilities. Since this does not narrow the federal mandate, it is acceptable. A state could not, however, preclude psychiatric service animals from access to its services even if state law only recognizes service animals as serving individuals with physical disabilities. That would be more restrictive than federal rules allow.

Some states may decide to conform state statutory language to federal rules, but others may leave their laws in place and enforce them when it seems appropriate. I would appreciate any observations from readers about state enforcement actions as the application of Justice’s rules begins to unfold in March 2011. Email me directly at

[1] Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services. 75 Fed. Reg. 56164 (September 15, 2010).

[2] 73 Fed. Reg. 34466 (June 17, 2008).

[3] See 41 CFR 102.74 (animals may not be brought onto federal property for other than official purposes, except a disabled person may bring a seeing-eye or guide dog, “or other animal assisting or being trained to assist that individual”) (emphasis added). The language may mean that only the individual who will ultimately use the dog in training can bring it onto federal property. State laws sometimes criminalize exclusion of service animals or causing injury to guide dogs or service animals. Although such laws are not made redundant by the federal rules, they could easily be adapted to cover the definition of service animal provided by the Department of Justice.

[4] 28 CFR 35.104; see also 28 CFR 36.104.

[5] 28 CFR 35.136 and 28 CFR 36.302(c).

[6] 75 Fed. Reg. 56191.

[7] 28 CFR Part 36, Appendix B (56 Fed. Reg. 35546, July 26, 1991).

[8] Ensminger, J. and Breitkopf, F. (2010). Evolving Functions of Service and Therapy Animals and the Implications for Public Accommodation Access Rules. Journal of Animal Law, 6, 1. Some states, for instance, include monkeys in the definition of service animal.

[9] 42 U.S.C. 12131(1); 28 CFR 35.104.

[10] 75 Fed. Reg. 56197.

[11] Id.

[12] 75 Fed. Reg. 56195.

[13] 75 Fed. Reg. 56167.

[14] 42 U.S.C. Chapter 126, subchapter II.

[15] 42 U.S.C. 24102(2) defines “commuter authority” as “a State, local, or regional entity established to provide, or make a contract providing for, commuter rail passenger transportation.”

[16] 42 U.S.C. 12131(1)(C).

[17] 28 CFR 35.102.

[18] Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45584, 45736 (September 6, 1991).

[19] 56 Fed. Reg. 45736.

[20] Department of Transportation, Transportation for Individuals with Disabilities, 56 Fed. Reg. 45755 (September 6, 1991). See also the extensive discussion of monkeys and other “unusual service animals” in the 2008 Air Carrier Access Act regulations. 73 Fed. Reg. 27636.

Saturday, October 9, 2010

Guide Dogs in the Dance of Death

The Dance of Death (Danse Macabre, Totentanz) was an allegory in poems and paintings from the late middle ages into the Renaissance. One figure included in the illustrations and the poems was that of the blind man, sometimes depicted with a dog. The woodcut here is from the 1649 edition of Matthaus Merian’s Todten Tantz. The lines above the illustration are the words of Death, “I cut you off from your guide.” The blind man responds below, in the third line saying, “I cannot take a step without my dog (hund).”

Merian was not the only artist to show the blind man in the Dance of Death with a dog. Others also showed Death cutting the leash connecting the blind man to a small dog. Holbein, in one of the most famous woodcuts of the Dance of Death, does not use a dog, but rather shows Death pulling away the blind man’s staff, another way of killing him.

It is difficult to draw sociology from allegorical illustrations, but it seems likely that these artists had seen blind men with dogs, and believed they could not move about without the animals. Death, after all, is severing their connection to the dogs in ending their lives. The blind men did not use halters on the dogs, but rather used staffs for support, connecting to the small dogs with leashes. Small dogs would have had the advantage of needing little food. The dogs did not stay by their masters’ sides but rather pulled them forward, as is shown in the Pompeii fresco and the Chinese scroll discussed in prior blogs (July 19 and September 14, 2010).

The size of the dog in the woodcut is probably reduced given that the purpose is to show what will happen to the man, not the dog. The dog’s posture is similar to that in the Pompeii fresco, with the dog looking back at the master as if awaiting a gesture or verbal encouragement. Amedeo Maiuri, once curator of the Pompeii Museum, described the man with the dog in the Pompeii fresco as a beggar. The poverty of the blind man in the woodcut is emphasized by his carrying what probably amounts to all of his possessions on his back. Of course it is extremely unlikely that a visual typology in the depiction of blind men would extend from the silver age of Rome to the early Renaissance. The similarity comes from the poverty that is almost inevitable with blindness in both periods, and the fact that dogs would be valued by the blind for their ability to provide some degree of sight.

It seems that blind men with dogs were common enough in the seventeenth century that their deaths could be depicted as inevitable if their ability to use their dogs came to an end.

Montaigne (1533-1592) made some relevant observations about dogs and blind men in his Apology for Raymond Sebond:

"Everyone is tired, I believe, of seeing how many kinds of tricks trainers teach their dogs [les batteleurs apprennent à leurs chiens]: the dances where they never miss a single cadence of the sound they hear, the various different movements and leaps that they are made to perform at their masters’ word. But I notice with more astonishment the action of the dogs used by the blind in country and city [chiens dequoy se servent les aveugles, et aux champs et aux villes], something nevertheless common enough. I have noticed how they stop at certain doors where they are accustomed to receiving alms [ils s'arrestent à certaines portes, d'où ils ont accoustumé de tirer l'aumosne], how they avoid the impact of coaches and carts, even when for their part they have enough room to pass. I have seen one of them, along a city ditch, leaving a flat, even path and taking a more inconvenient one in order to keep his master away from the ditch [pour esloigner son maistre du fosse]. How could anyone have made that dog understand that it was its task to consider only the safety of its master and to neglect its own comfort in order to serve him? And how did it know that a certain road would be quite broad enough for it, but would not be so for a blind man? Can all this be understood without ratiocination and without thought? [Tout cela se peut-il comprendre sans ratiocination?]" (Translation of Roger Ariew and Marjorie Grene, p. 26 (2003))

As Montaigne observes, however, the dog is going to places where its master is accustomed to receive alms, so the path is probably known to it, along with those aspects that are treacherous to both. Consequently, some of the dog's behavior may be explained as learned from repetitive experience of the route itself.

Perhaps dogs helping blind people were more common in urban centers of northern Europe than has often been recognized.

Monday, October 4, 2010

Dog Pound Nightmares

Those of us with pets have fleeting fears about pounds. At least I do. What if my dog got loose and was picked up by an animal control official somewhere and taken to a pound. She has a chip but a recent check found that it had moved from the back of her neck, where it was originally implanted, to a position above her right foreleg. It took the vet five minutes to find it. Would an animal control officer spend the time necessary to find the chip, assuming that a scan is standard procedure? The thought of Chloe dying in a chamber of other animals breathing a deadly gas would haunt me for the rest of my life. This happens. A story from Chicago about four dogs mistakenly put down has made some news recently.

A trial in Alaska concerned a family, the Richardsons, who lost their dog, Wizzard. The Robinsons called the pound and were told Wizzard was there. They said they would pick the dog up but because of work they could not get to the pound until just before closing. By the time they arrived, the dog had been killed because the pound staff had put Wizzard in with the animals being exterminated that day. The Richardsons sued.

The pound was run by the Borough of North Star, Alaska, which admitted that it had made a mistake in killing the dog after less than two days. Their procedures required that they wait three days. The Richardsons rejected an offer of $2,000 from the Borough before the trial. The jury awarded $300, but with costs and attorney’s fees added by the judge the Richardsons received $3,763. They appealed, arguing that they were entitled to damages for emotional pain and suffering and punitive damages. The court was willing to accept that there could be damages for intentionally or recklessly causing emotional distress, but the trial judge had determined that the Richardsons’ emotional distress did not warrant a claim for intentional infliction. Perhaps they didn’t cry enough. Tears work better on juries and judges than anger. The appellate court declined to reverse, saying that statutory authority would be necessary to award punitive damages. There was no statute giving courts such authority in Alaska. The Richardsons had to settle for what they got. Richardson v. Fairbanks North Star Borough, 705 P.2d 454 (Sup.Ct. 1985).

Cases seldom pierce the veil of what actually happens in pounds, but one 2006 decision did. If descriptions of animal cruelty disturb you, stop reading now.

Dr. Samuel Levingston was a senior veterinarian of the Bureau of Animal Regulation and Care (BARC) in Houston, Texas. He held this position from 1992 to 2000. BARC runs Houston’s pound and takes in 28,000 to 30,000 animals each year, about 25,000 of which are euthanized. Levingston testified as to many things that happened during his tenure with BARC. When air conditioners in BARC trucks failed, animals would arrive at the pound heated, exhausted, and sometimes dead. BARC kennel attendants held dogs in a dip tank with their heads under water “to teach them a lesson.” They threw dogs off BARC trucks onto a concrete floor, breaking bones. They pitched puppies like basketballs from trucks to a holding pen, also with a concrete floor. Some attendants washed newborn puppies down a sewer line. Attendants put cats in burlap sacks to throw them under the back wheels of the trucks. Levingston did not see the last thing happen, but at least six times he saw burlap bags containing animals with crushed skulls, bones, and legs. Animals scheduled to be euthanized were sometimes not fed or fed little because employees thought it was a waste of food.

Levingston complained by giving the office secretary notes to pass on to a manager who was seldom around. Then he got more formal and sent a letter. Levingston was informed by the director of Houston’s Department of Health and Human Services that the manager had recommended that Levingston be dismissed. It was said that Levingston had been negligent in the treatment of a Rottweiler. An outside veterinarian was retained to look into Levingston’s treatment of the Rottweiler. The investigation consisted of the veterinarian going to a library and reviewing documents presented by Levingston’s superiors. The veterinarian concluded that Levingston should have performed a test that was not even possible given the equipment available at the facility. But it was enough. Levingston was dismissed.

Levingston sued. The jury apparently found that Levingston’s complaints about BARC were the real reason for his termination and awarded him $1,241,500. This was modified to $1,173,904 by the trial court, and modified slightly again by the appellate court. The appellate court concluded that Levingston presented ample evidence from which the jury could conclude that the city’s claim about the Rottweiler and other reasons given for dismissing Levingston were no more than pretexts for getting rid of a whistleblower.

The picture painted in the court’s opinion is one of a city administration that did not want to be bothered by what its employees were doing. Most dogs and cats brought to the facility were killed. Only a small portion survived. People must be hired to do the killing. If 25,000 animals are euthanized annually in Houston, about 100 are to be terminated on the average business day. Getting people who will do this cannot be easy. Getting in their way will not be useful. I am sure that I am wronging someone with such remarks but I think it must be asked whether BARC was an exception or the tip of the iceberg that forced its way into judicial and to a degree public consciousness because of a veterinarian who did not keep silent. City of Houston v. Levingston, DVM, 221 S.W.3d 204 (Tex.App.-1st Dist. 2006).

Go to the website of Houston’s BARC. It is all about saving animals, as it should be. I searched it for any evidence about what the agency does with 80% or more of the animals that come into its custody. The only reference was inside the laws, which provide that a dog in the pound can, after six days, “be offered for adoption or euthanized at the discretion of the health officer.” At least that’s longer than the Borough of North Star, Alaska. A map from BARC’s website, a portion of which is reproduced here, shows downtown Houston by zip code. Yellow zip codes had less than 300 stray dogs from 2003 to 2009, orange between 301 and 600, green between 601 and 900, red between 901 and 1,200, and the four maroon sections had up to 1,500 stray dogs in that period. Much of Houston is not shown, but what is not are zip codes in the under 300 range. This is where the animals come from. If the pounds are nightmares, we make those nightmares by turning loose animals we can no longer care for, leaving unwanted puppies in parks, by dog fighters leaving the dogs that lose fights in the neighborhoods of rival gangs, on and on. Several million animals are killed each year in the United States in pounds.

In the situation that arose in Chicago where four dogs were put down by mistake, the Executive Director of the Animal Care and Control Department, according to one news report, did not know how many of the 24,000 dogs taken in annually by Chicago are put down. In such a position I would prefer not to think about it either, but not knowing does not make it go away.

Addendum. As noted in the very useful comment below, BARC is not the only kill shelter in the Houston area. Bett Sundermeyer, the author of the comment, gives additional sites regarding shelter policy issues.