Tuesday, November 11, 2014

Landlord Okays Service Dog, but Balks at Fenced-In Area for Dog’s Exercise

The federal district court for Oregon has determined that a case involving a tenant’s need for accommodations in order for her to care for a service dog must go to trial, that it cannot be resolved on cross motions for summary judgment.  Although there was some question as to the adequacy of the dog's training, the major issue concerned the tenant’s desire to put a fence around her patio and part of the common lawn of Rosewood Homes, arguing that this is the best way for her to let the dog out to relieve herself and get some exercise. 

The court analyzed the law of reasonable accommodation as it applies to the service dog user’s ability to care for a dog.  Since most court decisions in this area have concerned whether a tenant can obtain or keep a dog at all, the focus on this tenant’s request for a fence makes the case important for anyone seeking structural modifications or other accommodations to better care for a service animal in a housing context.  There will be a full trial on the unresolved issues in 2015. Oregon Bureau of Labor and Industries ex rel. Mayorga v. Housing Authority, 2014 US Dist. LEXIS 146671 (DC Or. 2014)

Tenant Seeks Service Dog

In 2005, Joy Mayorga, who suffers from degeneration of the lumbar disk, facet osteoarthritis, and fibromyalgia, asked permission from Housing Authority of Douglas County, which owns Rosewood Homes, where she lives, to obtain a service dog that would exceed the Authority’s weight and size restrictions for pets.  Mayorga’s request stated that she would “try and get a dog that meets the physical, mental, and also the temperament and attitude requirements necessary for the dog to be trained as a service dog.”  She included a letter from her doctor, Fred Black, MD, stating that “living and caring for a dog would be beneficial for Ms. Mayorga’s health.  It is my recommendation that she have a large, very sturdy dog that is at least eight months old.”  The Authority authorized Mayorga to have a dog for medical reasons. 

Mayorga’s condition confines her to bed five to seven days a month, sometimes consecutively.  Rosewood Homes consists of single-story duplex residences separated by common grassy areas shared by all residents of the complex.  Behind each unit is a concrete patio, approximately 9 x 20 feet, which is accessed by a sliding glass door.  Several months after making her initial request, Mayorga put up a fence around her patio, which the Authority directed her to remove.  Mayorga had advised the Authority that she was going to place some lattice on the corner of her patio to support flowers but, according to the Authority, had specifically stated that she was not fencing in her patio.  She more specifically requested a fence after that, but the request was denied. 

In 2008, Mayorga requested permission to bring a dog that might be trained to be a service dog into her home.  The dog, an American Staffordshire Terrier, one of two breeds called a pit bull, was five years old and weighed about 60 pounds, but had not yet been trained.  Mayorga had been a dog trainer, but not a service dog trainer.  A representative of the Authority, Janeal Kohler, asked for verification of vaccination and licensing, and then approved Mayorga’s request to bring the dog into her home. 

Mayorga then asked to fence off a kennel area behind her unit where Asia could exercise and relieve herself.  In one document, Mayorga said the fenced area would be 9 feet by 35 feet, but in another an area of 20 feet by 36 feet.  Most of the fenced area would be the patio but there would be “a bit of grass area” for the dog.  The Authority said that Mayorga could use a portable dog kennel, 3 feet by 16 feet in length, to be taken down when not in use and not attached to the building or concrete.  Mayorga responded that this would not provide sufficient exercise space for the dog and would be prohibitively expensive.  She also said that the dog, when tethered outside, another possible way of giving the dog exercise suggested by the Authority, was teased and approached by other people.  Mayorga asked that her initial request be reconsidered.  Kohler said that Mayorga’s proposed kennel would infringe on common space and suggested instead that she consider a dog walker, a more suitable assistance animal, or a temporary tether. 

Medical Release Request and Doctor’s Letter

At this point, Kohler requested that Mayorga sign a medical release so that the Authority could contact Dr. Black, but Mayorga declined to sign it, saying it was unlawful.  She also got a letter from a veterinarian and a manager of a training group stating that Asia needed an exercise area where she could be off leash.  Kohler agreed to provide Mayorga with a more carefully restricted medical release form.   Meanwhile, Dr. Black provided the following letter in support of Mayorga’s fencing request:

My patient Joy Mayorga, has given me permission to share the following information with you. Ms. Mayorga explained to me that she needs this letter from me because she has requested to be allowed to fence off an area for her service dog (which I had previously prescribed for her) thus allowing the dog to go outside on its own.

Because of her disability she has days when she can barely walk. Days when she even has to spend most of her day in bed. There is no way to determine when she will have such days nor how long they will last. At times this situation will interfere with her ability to take the dog out on a leash, even just long enough for the dog to relieve itself. She also has other health conditions that would be negatively affected by not allowing the accommodation she is requesting. All in all, I feel the best solution for Ms. Mayorga to keep and maintain her dog, is to allow her to be able to just open the door and let the dog out.

With regard to the dog's health, I can only say that because of the slow rate of Ms. Mayorga's walking, the dog will receive very little exercise. Other th[a]n that I am not in a position to speak to the dog's well being -- only Ms. Mayorga's. For her sake, I hope something can be worked out that will allow Ms. Mayorga to keep her service dog.

This time the request was denied because of (1) Mayorga’s refusal to provide written permission for physician verification, (2) a temporary tether was all she needed, (3) she could get an animal walker, and (4) there was risk in the proposed enclosure to third parties.  Kohler also said that two employees of the Authority had complained that Asia had behaved aggressively towards them.   A more senior official at the Authority indicated that Dr. Black’s letter obviated the need for the release form. 

As a side note, Dr. Black’s correspondence fits within the recommendations Dr. Thomas and I made in our article in the Journal of Forensic Psychology Practice concerning how medical professionals should write letters for patients with service and support animals.  The letters were specific to the patient, not canned documents obtained from a website, and considered how the issues presented relate to the patient’s condition. 

Mayorga and Oregon Bureau File Complaints

In 2010, Mayorga filed an administrative complaint against the Authority with the HUD and the Oregon Bureau of Labor and Industries.  The latter agency investigated the complaint and filed formal charges against the Authority and three individuals under Oregon Revised Statutes 659A.145 (Discrimination Against Individual with Disability in Real Property Transactions Prohibited) and 42 U.S.C. 3604 (Discrimination in the Sale or Rental of Housing and Other Prohibited Practices).  The Authority exercised its right to have the case heard in a state circuit court. 

In 2011, the Authority’s Board of Commissioners approved the Authority’s director obtaining bids for a possible vinyl fence and some discussions were held with a contractor.  No fence was put up, however, and in 2013 the Oregon Bureau filed a complaint against the Authority in state circuit court, which the Authority removed to federal district court.  Mayorga intervened as a plaintiff.

Federal Court’s Analysis

Judge Michael J. McShane, U.S. District Judge, observed that a “service animal, like any other assistance device, may require an additional accommodation to enable its effective use.”  Thus, an employer may be required to provide a ramp or widen a door for wheelchair travel.  The request to fence off a kennel area was such a request for an accommodation, which is to be granted if necessary to afford Mayorga the equal opportunity to use and enjoy her dwelling and if it is reasonable under the Fair Housing Act.  To prove necessity, Mayorga had to show that but for the accommodation, she would likely be denied an equal opportunity to enjoy the housing of her choice.  Giebeler v. M&B Assocs., 343 F.3d 1143 (9th Cir. 2003).

The facts indicated that Mayorga was sometimes bedridden for days and could not use the tether, presumably a long leash or a rope, as a substitute for a kennel, and in any case putting the tether on caused her pain.  There were some inconsistencies in the timing of events, however, in that Mayorga appeared to have attempted to erect a fence in the same general location even before the need to have it for the dog arose and she had provided the Authority “with an evolving explanation of her need for the accommodation.”  The judge also found some haziness in the record that made it impossible to determine whether the Authority had made improper medical inquiries regarding Mayorga, given that the Authority had the right to request information necessary to evaluate Mayorga’s disability-related need for accommodations, particularly when Mayorga’s condition was not necessarily readily apparent or already known to the Authority. 

Is Asia a Fully Trained Service Animal?

Judge McShane described Mayorga’s use of the dog as by 2014 involving the following:

“Mayorga's main physical impairment is pain caused by her lumbar disk degeneration and facet osteoarthritis…. Mayorga's pain is aggravated by bending, stooping, and walking…. Asia, Mayorga's service animal, is primarily used for stability support within her home. For example, Asia assists Mayorga in traveling up and down stairs, and walks alongside her in case Mayorga loses her balance…. If Mayorga falls, she is able to push off and/or be pulled by Asia to get off the floor…. Asia generally does not accompany Mayorga to the grocery store, doctor's office, church, or her great grandchild's school…. Mayorga does, however, infrequently walk Asia on a leash around the block, to the mail box, and to the office.”

Supporting and helping someone with mobility impairments stand after a fall fit within the functions of a mobility-impairment service animal, but it is not clear why Mayorga did not need the dog’s assistance in performing many errands.  Also, the judge found himself “unable to make any type of credible finding as to the adequacy of Asia’s training.”  It is not clear if Asia’s functions specific to Mayorga’s condition were not fully established, or if the judge is referring to Asia’s training with regard to being in public.  Mayorga initially described Asia as a “possible service animal,” and in 2008 the Authority had apparently received complaints of aggressive behavior from the dog, possibly indicating that some level of obedience training was still needed.  Is Asia’s potential aggressiveness still a problem?  The difficulties described in using a tether might suggest that Asia’s training in recall was not complete. 

The judge may have been concerned that it would be inequitable to order accommodations needed in part because the dog was not a fully trained service dog.  This issue usually arises with emotional support dogs that provide comfort but are not trained to do work or perform tasks specific to a disability.  That does not appear to be the case here.  Rather, the court may be considering what limits might be appropriate in an order covering a dog trained to perform tasks or do work related to a disability but not trained on some basic obedience commands.  The use of a dog walker for giving the dog exercise might be appropriately considered in such a situation.  

Conclusion

Judge McShane determined that a trial was needed “because a fuller record will afford a more substantial basis for decision.”  It will be important to tailor injunctive relief to the conditions obtaining at the time of the trial.    

This is not a case where a landlord adamantly refused to consider a valid request for a service animal and declined to even discuss the matter with the tenant.  The Housing Authority seems to have rethought some of its positions on its own, acknowledging for instance that its first request for a medical release was too broad.  The Authority seriously looked at the possible fencing of part of the area behind Mayorga’s unit. The court correctly saw the record so far developed as inadequate to assure a fair ruling. 

As of this writing, a jury trial on the matter is scheduled before Judge McShane on January 27, 2015. It is to be hoped that the judge will write an opinion on whatever final resolution is reached at trial.  

Thanks to Leigh Anne Novak for valuable comments. 

Monday, November 3, 2014

CDC Seeks Data on How Vets with PTSD Are Helped by Dogs; Therapy Dog Organizations Could Provide Valuable Input but May Not Be Participating

The Centers for Disease Control has begun distributing two surveys, one to veterans and one to “assistance dog providers,” in an attempt to gather data on how dogs may be helping veterans find jobs and reintegrate into society.  The survey for veterans to complete is getting a negligible response rate, so the CDC is now asking the Office of Management and Budget to approve an incentive for veterans who at least attempt to complete the form.  The incentive would be a $50 prepaid VISA card. 

An Assistance Dog Providers Survey is getting a sufficient response in the CDC’s opinion, but it must be questioned whether all the organizations that could provide valuable input are aware of this survey’s existence.  “Assistance dog,” as defined by the CDC, includes therapy dogs, yet at least one of the largest national therapy dog organizations I contacted (not the one to which I belong) was unaware the survey was being conducted.  Neither the current release in the Federal Register, nor a preliminary release on September 9, discussed in a prior blog, defined assistance dog and the definition would only become apparent to organizations from project documents that have to be requested from the CDC.  Although the response rate from service dog training organizations might be adequate, the use of service dogs by veterans is only part of spectrum of canine relationships that the CDC is attempting to gather data about. 

The issues with the two surveys are most easily discussed separately.  

Veterans Survey

The survey for veterans asks about their experience with pet ownership and how various experiences with animals have helped them physically and emotionally, and whether such experiences have been helpful in getting them reintegrated into society.  To date, only 66 veterans have completed the survey, barely 1% of the 6,000 responses the CDC has been hoping to get. 

One reason for the poor response rate is indicated in the request sent to the Office of Management and Budget.  In describing changes that are being made to a flyer that will be distributed through various veterans’ and other organizations, the CDC says that it has added a statement to the flyer “indicating that the survey is not affiliated with the Veterans Administration (VA), as some veterans may have negative feelings about the VA that would discourage their participation in the survey.” The CDC is certainly correct in this supposition as the VA has actively inhibited many veterans from obtaining and using service animals, as discussed here before. 

Another issue for some veterans may be the nature of the questions asked.  The CDC states:

“This survey will ask potentially sensitive questions, such as the race/ethnicity of the respondent and the respondent’s diagnosis. This demographic information is necessary to analyze any consistent patterns among veterans’ race/ethnicity and psychological diagnosis, as well as with level of attachment to pets and the need for assistance animals for specific populations of veterans. This information will be used to inform assistance dog training organizations of the needs of veterans obtaining assistance dogs. It will also be a step toward understanding the idiosyncratic needs of veterans based on various psychological diagn[oses].”

The time to complete the survey is estimated by the CDC to be up to an hour, which may also discourage some. 

In order to overcome these and perhaps other unknown reasons for the poor response rate to date, the CDC is now seeking approval from the Office of Management and Budget to offer a $50 VISA gift card for veterans “completing all or portions of the survey.” 

Assistance Dog Providers Survey

The second survey the CDC is distributing is for assistance dog providers, about which the CDC appears confident it will get enough responses.  This survey “will be sent by email to approximately 1,000 service dog providers,” from which the CDC hopes to get 300 responses.  As of October 17, the CDC reports that 91 organizations had completed this survey.  Three hundred might seem like an optimistic number if one thinks only of organizations that train service dogs for veterans, but the agency defines assistance dogs rather broadly as a term including—

“service dogs, service animals, therapy dogs, visitation dogs, recreation support dogs, social therapy dogs, guide dogs, hearing dogs, seeing eye dogs, eye dogs, sight dogs, mobility dogs, mobility assistance dogs, balance dogs, disability dogs, hearing dogs, hearing ear dogs, signal dogs, psychiatric service dogs, PTSD dogs, anxiety dogs, emotional support dogs, skilled companion dogs, home help-mate dogs, companion dogs, court dogs, medic alert dogs, seizure alert dogs, seizure response dogs, diabetic alert dogs, autism dogs, detection dogs, facility dogs, facilitated service dogs, 3rd party dogs, READ dogs, high schooled assistance dogs, emergency response dogs, search & rescue dogs, career dogs, and police dogs.” 

This includes a great many types of trained and professional dogs.  Despite this all-encompassing approach, the current version of the survey instrument being sent to assistance dog organizations defines only four types of assistance dogs, as follows (in the wording and emphasis of the survey itself):
  • A service dog performs specialized skills directly related to the handler's disability. Service dogs meet the standards for public access as protected by the Americans with Disabilities Act (ADA).
  • A professional therapy dog is handled, utilized, or supervised by a health or human services professional in a therapeutic setting. Although they may have specialized skills, they are not service dogs or visitation dogs.
  • A visitation therapy dog provides support, comfort, and companionship to individuals in settings such as hospitals and nursing homes. They are not service dogs nor professional therapy dogs, and do not have public access rights.
  • A support dog provides emotional or physical support or assistance related to the handler's disability, usually only in the handler's home (they may have very limited public access rights). They are not service dogs, professional therapy dogs, or visitation therapy dogs.
For each of these four categories, organizations are asked how many and what percentage of dogs that enter the program end up performing the desired function and how many dogs are put in service annually.  For professional therapy dogs, the questionnaire asks “with which health and human services professionals have your professional therapy dogs been placed?” Respondents may choose from occupational therapists, physical therapists, psychologists, physicians or psychiatrists, counselors, nurses, social works, and other (please specify). 

The survey questionnaire seems to be based on a model that is most appropriate for a service dog training program, not for a certifying organization where dogs are trained by other individuals or groups and pass a qualifying test administered by the organization.  Visitation therapy dog respondents are not asked about what sorts of facilities the therapy dog teams are working in.  Since such information is gathered to varying degrees by the certifying organizations, the CDC may be missing an opportunity to learn more about where veterans are being offered animal-assisted activities and therapies. 

Value of Survey Information

The CDC’s primary aim in conducting the surveys is to gather information about how bringing dogs into the therapies and lives of veterans may help them find jobs and happiness.  It is apparently not the only reason, however, as the October 23 release states that it is “part of a larger project that will identify priorities and new opportunities for research, as well as address policy implications associated with public access rights afforded to service dogs by the Americans with Disabilities Act.”  Whether the CDC has an understanding with the Department of Justice to share results, or whether the DOJ has asked the CDC for input regarding possible changes to its access rules, is not clear.  The reference may not be specific to service dog access issues in any case.  It is curious that in defining a support dog, the CDC says that “they may have very limited public access rights.”  This could refer to travel and housing contexts, but the CDC could also be thinking that changes might be made to rules regarding transportation modes under control of the Department of Justice, e.g., taxis.   

Another possible area of change with regard to animal access might be hinted at in another type of function specifically defined by the CDC, the professional therapy dog.  The CDC says these dogs are neither service dogs nor visitation dogs, but does not mention whether they have access beyond that of pets.  This is the only specifically defined assistance dog type where access is not referred to in the CDC’s definition.  In Service and Therapy Dogs in American Society (p. 110), I mention one instance where a dog that might belong in this category had limited access under a state statute, but I know from personal communication with one researcher that there are those in those working in treatment facilities who believe that dogs involved in animal-assisted therapies should have access rights similar to service dogs.  For instance, in New York City, handlers of therapy dogs are often limited in the facilities they can visit by the lack of access to subways and buses.

The CDC expects the results of the Assistance Dog Providers Survey to help with research projects being conducted at West Virginia University and has asked that Dr. Joseph Scotti of the WVU Psychology Department to be named a collaborating investigator.  The submission to OMB also refers to Lindsay Parenti, of the same department, one of whose papers on the categorization of assistance animals I cited in a prior blog.

Conclusion

The CDC appears to be distancing itself from the VA’s policy of granting a single service dog umbrella organization a monopoly on who can provide service dogs for veterans.  The agency also recognizes that a comprehensive study of the benefits of dogs for veterans involves looking across a number of types of interactions veterans are having with dogs, from service dog pairings to companion animals to occasional interactions with therapy dogs. 

As I have noted previously, gradients of interaction and qualification must be taken into account before a determination can be made as to where public resources are best placed and before legal restrictions can be designed equitably.  Transferring authority to a private organization without understanding the complexities of how veterans can be given the best opportunities to be aided in what they face is irresponsible, yet amazingly enough the Army has followed the blind lead of the VA in this regard, and has kept a ban on dogs for PTSD.

Scientific results cannot be handicapped by expectations and still be scientific, but research on the benefits of dogs is generally tending towards a positive assessment of their ability to make many people with both physical and psychological disabilities more comfortable, and ultimately more successful.  Cures from animal interactions are rare and should not be a sole criterion for success.  The CDC is to be commended for looking at the complexities of the issue and trying to obtain input by those most in need of the psychological and physical benefits of human-animal interactions. The agency has also taken steps to get in contact with, and obtain information from, a broad range of stakeholders working with dogs and veterans.  By making some changes to the Assistance Dog Providers Survey, even more useful data could be obtained. 

West Virginia University has a website with both surveys posted. WVU specifically notes that providers and trainers of therapy dogs are being sought to complete the assistance dog survey.  Copies of documents may also be obtained from Leroy A. Richardson of the CDC, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to omb@cdc.gov.  Mr. Richardson can be reached directly at 404-639-7570.

Appendix: Email I sent to officials of the CDC and NIOSH:

Dear ....
I believe the Assistance Dog Providers Survey will provide important information to the Centers for Disease Control and Prevention regarding the effects that various types of interactions with animals, particularly dogs, are having on veterans and their ability to return to productive positions in society. I have not had the opportunity to review the Survey of Veterans and will not comment here on that other than to say that I believe the decision to add language to the flyer emphasizing that the survey was not created by the Department of Veterans Affairs is appropriate. 

As to the survey of Assistance Dog Providers, I will make several observations. First, in the interest of full disclosure, I am a member of a national therapy dog organization and have been visiting various facilities for six years with my therapy dog, which under your survey would be defined as a visitation therapy dog. Other than in my capacity as a member of a therapy dog organization, I do not represent that organization or any other organization, business, or individual involved in therapy dog work. Further, because I have written a book and maintain a blog on various professional dog issues, any direct representation of any of the organizations involved in service or therapy dog work could conflict with the objectivity of my reporting and I do not anticipate that I would have any such organizations as clients. 

I believe that obtaining information from training organizations will be helpful in assisting the CDC and other federal agencies to develop appropriate policies and in allocating resources for research projects and government-funded programs that will help veterans return to work.  I would argue, however, that there are organizations that could provide important information that may be overlooked or which may decline to participate because of the title of the survey and because of the focus of its questions.

As to the title of the survey, many people associated with the training  and certification of skilled dogs will assume that an “assistance dog” is either (1) a service dog, (2) a category of trained dogs that includes both service and emotional support dogs, (3) a dog that qualifies for living with an individual who has disabilities in a building, condominium, or community with a no-pets policy, or (4) a dog trained by a member of Assistance Dogs International, a national organization.  There are undoubtedly other meanings that could be found for “assistance dog” than these.  Anyone assuming that your use of the term fits in such a category will likely not be aware of your broad definition (0920-0985 REV Section A) which defines assistance dogs as including “service dogs, service animals, therapy dogs, visitation dogs, recreation support dogs, social therapy dogs, guide dogs, hearing dogs, seeing eye dogs, eye dogs, sight dogs, mobility dogs, mobility assistance dogs, balance dogs, disability dogs, hearing dogs, hearing ear dogs, signal dogs, psychiatric service dogs, PTSD dogs, anxiety dogs, emotional support dogs, skilled companion dogs, home help-mate dogs, companion dogs, court dogs, medic alert dogs, seizure alert dogs, seizure response dogs, diabetic alert dogs, autism dogs, detection dogs, facility dogs, facilitated service dogs, 3rd party dogs, READ dogs, high schooled assistance dogs, emergency response dogs, search & rescue dogs, career dogs, and police dogs.”  It is to be noted that this definition appears in a document that I obtained only by direct contact with the CDC and is not contained in either of the recent releases published in the Federal Register (September 9 and October 23).  Even if many of the types of specialized dogs listed in this definition will not be particularly relevant to veterans in their efforts to return to work, some types of dogs (e.g., therapy dogs) are regularly encountered by many veterans in residence, medical, and rehabilitation settings and organizations with information on those dogs may be helpful in providing the CDC with data and contacts.

The Assistance Dog Providers Survey as presently drafted defines four specific types of assistance dogs: service dogs, professional therapy dogs, visitation therapy dogs, and support dogs, and asks specific questions for providers of each of these types of dogs.  The questions seem to me to assume a model whereby an organization completing the form would be involved in the training of the dogs that may in time be deemed qualified to engage in a specific function.  While this may be true in many instances, there are also therapy dog certifying or registration organizations that qualify dogs trained by individuals and other training organizations by administering a test or tests the passing of which result in a handler and his or her dog receiving a certificate or registration document.  To my knowledge this is the primary method of operation of the major national therapy dog organizations. A question such as the following does not fit well within this model:  “Approximately what percentage of your dogs eventually become visitation therapy dogs?”  The dogs do not in any sense belong to the certifying organization or to the administrators of the tests.  Thus, they are not “your dogs.”  Nevertheless, if a dog passes the test or tests, the organization will keep records concerning the handler and the dog and will provide insurance for a handler operating within the organization’s guidelines.  The organization is also likely to know where the dog is making visitations as handlers are generally asked to submit reports on a regular basis or may receive referrals from the organization’s administrators. Such organizations are increasingly automated in their data collection and can likely provide information that could be useful to the CDC.  Thus, even if the organization finds out that its members are involved in work covered by the survey’s areas of inquiry, officials of the organization may not feel that the survey instrument can be appropriately filled out in its current form or may be deterred by the number of qualifications that would have to be inserted before many of the questions could be answered at all.  I would suggest that a relatively few changes could make the instrument more accessible in this regard.

Since you indicate that survey results “will lead to recommendations and guidance … pertaining to animal-assisted interventions …” (79 Fed. Reg. 63403), the inclusion of information from therapy dog organizations will be important in gathering data on animal-assisted activities and animal-assisted therapies involving veterans.  Since the database may well provide information that can be useful in further research efforts, therapy dog organizations could be useful in gathering data by answering questions such as the following:

  1. What percentage of your members visit facilities, such as hospitals, residence facilities, outpatient facilities, etc. where the word “Veteran” appears in the name of the facility?
  2. In the last year, how many of your members reported visiting facilities with “Veteran” in the name of the facility?
  3. What is the number of separate facilities with the word “Veteran” that were visited?
  4. What was the total time of your members’ visits to such facilities in the last year?  
  5. Are members of your organization required to take additional training in order to participate in animal-assisted therapies or other therapeutic interventions under the control of a medical or psychology professional?  

In addition to providing information from their own databases, therapy dog organizations might be willing to survey their members with additional questions that could either be collated by the organization or provided in some form that the CDC could itself work with.  Thus, members of the organization could be asked such questions as:

  1. How many facilities do you visit where U.S. veterans are in residence or regularly receive treatment?
  2. What types of facilities do you visit where you and your dog visit veterans: Hospitals? Nursing homes? Outpatient treatment centers? Etc. Etc.
  3. How long on average do you and your dog stay with a veteran during a visit to a facility?
  4. Do you and your dog participate in any structured therapeutic activities involving treatment of veterans?
  5. If you participate in any structured therapeutic activities involving veterans, is the activity under the direction of a psychiatrist or psychologist? A physical therapist?  An occupational therapist? Etc.

The granularity of the inquiries could provide a great deal of information nationally on the animal-assisted therapies and activities that might involve therapy dogs. Obviously, privacy issues would come into play here that will have to be considered in designing questions or providing cautions to participating members. 

It is also to be noted that many therapy dog handlers are in contact with veterans who do not have pets but have a history of pet ownership and could be an ideal source for disseminating information about the Veterans Survey. In visiting the hospital which is currently the primary focus of my therapy dog visitations, I meet veterans who wish to tell me about dogs they have owned when they lived independently. Finally, many therapy dog organizations and therapy dog handlers are regular users of various social media and could help spread the word to veterans about the importance of the survey you are distributing for them.    

I have been in contact with one national therapy dog organization (not, incidentally, the one to which I belong) and found that the head of the organization was unaware of your survey despite having many thousands of members, many of whom visit facilities where veterans can be found.  Such visitations may, to use your terminology, involve either professional therapy dogs or visitation therapy dogs. I believe that not designing the survey to assure the participation of such organizations amounts to a missed opportunity for the CDC.  Also, it means that a significant part of the spectrum of potential interactions between veterans and animals is likely to be missed and not adequately described from the current survey you are using to gather data on assistance dog providers.  

John Ensminger, Esq.

Tuesday, October 21, 2014

Deputies Stand by as Restaurant Excludes a Service Dog; Sheriff's Department May Be Liable

People with service animals still encounter resistance to bringing their animals into places of public accommodation, such as restaurants.  They rightfully expect to be able to do this without difficulties but, if an issue arises, they hope that the police, if summoned, will at least be able to explain some of the rudiments of disability law to the employees of the business involved. 

Nevertheless, a number of cases suggest that some law enforcement agencies remain ignorant of the rights of individuals with disabilities who use service animals, and that this ignorance has too often been forgiven by courts.  A recent decision from the federal district court for the Western District of Louisiana, however, suggests that courts may not continue to shield officers who unthinkingly help a business bar or eject an individual with a service animal. 

Before getting to the specifics of the recent decision and three prior decisions that were completely unsuccessful in this regard, in the manner of a law school class let us pose a series of hypotheticals.  The following basic facts apply to each of the hypotheticals: 

You have a service dog—say, a seizure-alert dog that generally is able to alert to an oncoming seizure several minutes before you have one.  The dog is also trained to stay beside you and provide something for you to hold onto so that you can sit or lie down without injuring yourself during the first minutes of a seizure.  The dog has a vest but you do not always put the vest on the dog.  You do, however, keep some documents regarding the dog’s function with you at all times.  

Also assume that you are a member of a neighborhood watch team and one night a week patrol the neighborhood with your dog and another member of the team.  The neighborhood watch team has a meeting once a month.  Formerly the team met in houses of the members but it has become too large and a decision is made to move the meeting to a restaurant.  A diner nearby is chosen because it is convenient, can be walked to, and agrees to host the meeting and provide donuts for $50 if the meeting is held on a Monday night after 8 p.m., when business is slow in any case.  You have only been in the diner twice, but neither time did you have your dog with you. 

You take your dog to the neighborhood watch meeting.  The dog is not wearing a vest.  Outside the diner, the manager, who is greeting members of the watch team as they arrive, sees your dog and says that you cannot bring it into the restaurant.  You explain the dog is a service dog and pull the documentation regarding the dog’s function from a briefcase you are holding.  The manager refuses to look at the papers.  Several other members of the team take your side but the manager insists that the diner only admits guide dogs. 

Now, consider the following four hypothetical variations on what happens next:
  1. Because you are a member of the neighborhood watch, you have the local police station on speed dial and call the station to request assistance because your rights are being violated.  In five minutes a patrol car arrives.  The officer knows you and explains to the manager that your dog should be allowed the same access as would be given to a guide dog.  The manager calls up the owner of the diner, who backs up the manager’s decision to exclude the dog.  The manager remains adamant that you cannot bring the dog in.  The officer explains to you that he cannot force the manager to admit the dog, but that you have rights and can file a complaint in the matter.  You go home.
  2. The facts are the same except that the officer who responds to your call is not known to you and talks to the manager but does not attempt to convince him that he should admit both you and your dog to the diner.  The officer tells you that he can do nothing for you, that the diner has the right to refuse service to anyone, and that you must leave.  If you attempt to enter the restaurant the officer says he will have to arrest you and impound your dog.
  3. The facts are the same except that when you get to the diner and begin arguing with the manager, you do not need to call the police station because there is a police car in the lot and the officer in the car is eating a sandwich.  Although he sees your interaction with the manager, he says he will talk to you after he finishes his lunch break.  He makes a call to his girlfriend and talks to her for nearly twenty minutes before getting out of his car and listening to you.  You do not know this officer but he clearly does not know anything about the law of service dogs.  He says he will call his chief, as he has been instructed to do when situations arise with which he is not familiar.  By the time the chief calls him back you have been waiting for nearly an hour and the meeting has gone on without you. The manager locked the door so when the officer knocks the manager has to unlock it. The officer explains to the manager that his chief has told him that you are entitled to bring the dog into the meeting, but the manager still refuses.  The meeting is now almost over and you go home.
  4. The facts are the same except when you get to the diner there are two policemen outside the restaurant talking to members of the watch.  One of the officers is going to speak at the meeting and the other has accompanied him for moral support.  They have come as a courtesy to the neighborhood watch group.  When the manager tells you that you cannot bring your dog into the meeting, the officers see what is going on and you ask for their assistance.  They tell you that they cannot help you and that your problem is a federal matter on which they have no jurisdiction.  They go into the diner without speaking to the manager.  You and your dog walk home.
There seems to me to be enough of a moral failing on the part of the police in the last three hypotheticals that some level of liability should attach.  Nevertheless, decisions from which the hypotheticals were adapted (with a degree of poetic license) indicate that only the fourth situation might lead to any liability or even a serious reprimand from a court after the presentation of the case. 

Let us review the decisions from which I drew these hypotheticals. 

Pizzeria Ejects Patron with Service Dog

Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034 (8th Cir.1998) 

The employees of Cecil Whittaker’s Pizzeria asked Marilyn Pona, who suffered from degenerative spine and joint disease, to leave a pizzeria because she had a dog with her.  Pona alleged that the officers responding to the scene refused to explain the law regarding service dogs to the restaurant, but did inform her of her remedies, and asked her to leave the premises. 

Pona filed claims under the Americans with Disabilities Act, 42 U.S.C. 1983 (providing a civil action for a deprivation of rights), and the Missouri Human Rights Act.  She asserted that the police refusal to assist her in gaining access to the restaurant was due to a formal policy (Special Order 86-S-31) which directed police officers to take no enforcement action with regard to the Missouri statute (209.150) that gave her the right to be accompanied by a service dog in a place of public accommodation.

Cecil Whittacker’s Inc. moved for summary judgment on the basis that as the franchisor the pizzeria, it could not be liable under the ADA because it did not own, lease, or operate a place of public accommodation (as required to come under 42 U.S.C. 12182(a)).  The district court agreed.  The manager of the franchise had called Donald Glenn, president of CW, the franchisor, who told the manager that he “wouldn’t have any animals in [his] restaurant” because it “doesn’t look good for the franchise.”  Glenn denied making such a statement, but for summary judgment purposes it was assumed that he did.  The court said that such a statement by Glenn would not alter the fact that the franchisor had no control over the franchise in this regard and was at most giving advice. 

There were three judges and three opinions in this Eighth Circuit case.  All three judges agreed that the franchisor could not be held liable because of its lack of control of the franchise, even if an executive had given some advice to the franchisee’s management.  Two of the judges found that the City of St. Louis Board of Police Commissioners did not have a policy that effectively withheld enforcement services from disabled citizens.  There were some policy documents, but there were complex questions as to the authority under which they were issued and whether they applied to the particular situation involving Pona and the restaurant. Judge R.S. Arnold, however, disagreed with his colleagues and said there was in fact a policy that effectively withheld law enforcement services from disabled citizens. 

Judge M.S. Arnold held that because the ADA claims failed, a 1983 violation for deprivation of federal rights based on such claims must fail.  Also, an ADA violation is not actionable under 1983 because it must be presumed that the enforcement provisions of the ADA are the exclusive mechanism for enforcing the ADA.  He did state, however, that “I intimate no view on the question of whether Title III violations can ever form the basis for a cause of action under § 1983.” Judge Panner said more generally that ADA Title II and III claims are not cognizable as 1983 claims.  Judge R.S. Arnold did not mention 1983. 

Pona also argued that the St. Louis police officers violated the Missouri Human Rights Act, which makes it unlawful to deny anyone accommodations provided by any place of public accommodation on the grounds of handicap.  Judge M.S. Arnold doubted “the facts would support a finding that Ms. Pona was denied service at the pizzeria ‘on the grounds of … handicap.’ It was her dog, not Ms. Pona herself, to which the pizzeria raised objection.”  Judge Panner disagreed, saying that denial of services on account of a service dog was denial of services on account of a disability, but without further explanation agreed that the state law claim should be dismissed.  This could be because the franchisor was not in sufficient control to be liable or because no federal claim survived. 

Would anyone seriously argue that telling a person in a wheelchair not to bring it in a restaurant, though the person needing the wheelchair could not come in without it, was not a denial based on a disability? 

Popeye’s Manager Refuses Service to Customer with Hypoglycemia Alert Dog

Gipson v. Popeye’s Chicken & Biscuits, 942 F.Supp.2d 1303 (N.D. Ga. 2013)

Taylor Gipson has a dog named Bear that can detect his blood sugar level gets too high or too low.  On May 12, 2012, Bear alerted Gipson in a manner that indicated to him that his blood sugar was low and he entered a Popeye’s restaurant to order food, which would have corrected this condition.  He took a table near the back door to wait for his food while Bear lay quietly on the floor next to him. 

Shanika Parks, manager of the restaurant, came to Gipson’s table and asked if Bear was a seeing-eye dog.  Gipson replied that Bear was not and Parks demanded that he leave the restaurant with the dog.  Gipson tried to tell Parks that he was entitled to keep a service dog, even though it was not a guide dog, with him under federal law.  According to the Georgia federal district court (employing some passages from Gipson’s complaint):

“Parks ‘became agitated’ when Plaintiff stated he had a right under the Americans with Disabilities Act to remain in the restaurant with Bear… Her ‘agitation escalated’ when Plaintiff would not leave…. Parks stated that Plaintiff was ‘costing her customers’ and ‘demanded’ that Plaintiff and Bear ‘get out of her restaurant.’ … Despite Parks’s ‘escalating hostility and agitation,’ Plaintiff ‘calmly’ explained to Parks why he was legally entitled to have Bear in the restaurant.”

Parks then threatened to call the Cobb County Police Department to remove Gipson and Bear.  Gipson again refused to leave and explained that he had a right to have Bear in the restaurant.  Parks made good on her threat and called the police, as did Gipson, who assumed that the police would explain his rights to Parks. 

Before the Cobb County Police arrived at the Popeye’s restaurant, another customer approached Parks and told her that Gipson had a right to have a service dog in the restaurant.  The customer even apologized to Gipson for Parks’ behavior. It is at least a small comfort that the public is becoming aware of the rights of users of service animals, apparently somewhat more than some employees of national businesses and some police officers. Popeye’s restaurants, according to its answer to the complaint, have sound policies with regard to service animals, even if some employees do not know about them.

Anyone who has worked in disability law, or civil rights law, would assume on the facts that the police, by this time in the history of American law, would arrive and tell the manager that for nearly a generation service dogs have included many types of dogs besides guide dogs, as recently happened at a restaurant near Boston. Continuing with the court’s narrative of events:

“When the police arrived, Parks quickly went outside to meet the officer and loudly demanded that Plaintiff and Bear be ordered off the property or removed by force…. Plaintiff’s mother arrived on the scene to hear Parks’s conversation with the police…. Plaintiff also then spoke with Officer Fuller and explained why he believed under the Americans with Disabilities Act that he and Bear had a right to be in the restaurant…. Plaintiff’s mother offered Officer Fuller a card which explained Plaintiff’s rights, but Officer Fuller declined to look at it… Officer Fuller stopped Plaintiff from speaking and said he ‘knew the law.’  Officer Fuller spoke with Parks again and she again stated that Plaintiff had to leave the property…. Officer Fuller explained to Plaintiff that because the restaurant was ‘private property,’ Plaintiff and Bear were trespassing and had to leave immediately…. Although Plaintiff again tried to explain his rights, Plaintiff was eventually ‘forced to comply’ with Parks’s demand that he leave the restaurant.”

Narrative Portion of Incident Report in Popeye's Dispute
Officer Fuller’s incident report reflects that Parks was aware of Gipson’s contention that the dog was a service dog, but also that she believed that several customers walked inside the business and then left because of the presence of the dog. The fact that a service animal might be disturbing to another guest is not a reason for barring access to a place of public accommodation unless the dog is out of control (which probably would indicate it is not a service animal).  The incident report states that Bear was wearing a service dog vest.  The vest does not prove that Bear was a service dog under federal law (as the Department of Justice has indicated in regulatory releases), but the ability of the dog to alert to hypo- or hyperglycemia does suggest that the dog very likely qualified as a service dog. 

Cobb County argued that Gipson was not denied any service by Officer Fuller, who was responding to the calls both from Parks and Gipson.  Officer Fuller informed Gipson that because the restaurant was private property and because the manager wanted Gipson to leave, he would need to leave.  The County argued that Fuller’s actions did not deny “services, programs, or activities” of a public entity under Title II of the ADA, which applies to state and local governments.  The court cited Bledsoe v. Palm Beach County Soil & Water Conservation District, 133 F.3d 816 (11th Cir. 1998) as providing that discrimination by a public entity need not be limited to “services, programs, or activities” of the entity but to all discrimination by the entity.  The district court then analyzed whether there had been discrimination in Officer Fuller’s handing of the matter:

“[T]he court focuses on whether Plaintiff has alleged sufficient facts to show that the exclusion, denial of benefit, or discrimination was by reason of Plaintiff's disability. The court finds that Plaintiff has not. Based on the facts alleged in the complaint, Officer Fuller responded to the scene and listened to the position of both sides. The restaurant manager informed Officer Fuller that she wanted Plaintiff to leave because Plaintiff's service dog was scaring away other patrons. Plaintiff and his mother told Officer Fuller that Plaintiff had the right to be accompanied in the restaurant by his service dog. Officer Fuller determined that the restaurant was private property and the restaurant manager could ask Plaintiff and his service dog to leave. Officer Fuller, therefore, did provide services to both Plaintiff and the restaurant manager. Plaintiff disagrees with the outcome of those services, but there is no doubt that Officer Fuller responded to the scene and attempted to resolve the conflict. There can be no expectation that the police will always resolve a conflict in one's favor and Plaintiff has alleged no facts which would show that Officer Fuller's determination that the restaurant manager could ask Plaintiff and his service dog to leave the private property was one he reached on the basis of Plaintiff's disability.”

The court then makes a highly questionable analogy:

“If the court were to determine that Plaintiff was denied services based on his disability because Officer Fuller did not convince the restaurant manager that Plaintiff and his service dog could remain in the restaurant, the police would become responsible for sorting out civil liabilities. While one might argue that whether a service dog is permitted in a restaurant is a fairly straight-forward question (and one that the court will need to address with respect to Popeye's liability in this civil action), another patron might challenge the degree of slope of a handicapped ramp into the restaurant, a much more difficult question to resolve on the scene. There can be no expectation that police officers are equipped to address that type of situation when responding to a disturbance call. County police officers are not civil lawyers. Plaintiff has not alleged that the officer violated his constitutional rights. Most significantly, Plaintiff is not left without a remedy; he has sued Popeye's Restaurant to enforce his rights under the Americans with Disabilities Act.”

Listening to a store manager without remarking that her position likely violates a customer’s rights, then telling the customer with a service dog to leave, is to be distinguished from a situation where an officer attempts to inform the store manager that her actions could lead to liability for both herself and her employer, and cautioning the manager that the officer expects he may be called to testify if the customer files suit.  Explaining remedies to a person with a wheelchair might be the only appropriate action where the slope of a ramp is too great, because nothing else would be possible at the moment.  Here, more of a dialogue initiated by the officer appears to have been both possible and desirable. 

Courthouse Staff Delays Admission of Witness with Service Dog

Sears v. Bradley County Government, 821 F.Supp.2d 987 (ED Tenn., 2011) 

Brenda Sears has a seizure disorder and uses a service dog named O’Neal.  She went with the dog to the Bradley County Criminal Justice Center on August 11, 2009, to testify for a friend’s son.  Sergeant Brown, operating the metal detector and security check at the courthouse, informed Sears that dogs were not allowed in the courtroom, to which she replied that the dog was a service animal.  It took 20 minutes before Brown spoke with a court officer and showed him papers that had been given him by Sears’ husband regarding service animals.  The papers were passed onto the judge in the case, who said he would look at them after lunch.  The judge eventually said Sears could enter the courtroom with the dog. 

During the lunch hour that the judge took, Sears stated that she was required to remain standing because there was no chair for her to use and that she was not allowed to use a restroom in the courthouse, forcing her to use one in a Taco Bell nearby. 

Sears filed claims under the ADA, Title II, 42 U.S.C. 1983, and various state law torts.  The Tennessee federal district court dismissed the ADA complaint against Brown in his individual capacity, finding no individual liability under Title II of the ADA.  Brown was granted summary judgment as to the complaint against him in his official capacity as, according to the court, the facts did “support an inference Sergeant Brown intentionally discriminated against Plaintiff on account of her disability.”  This, of course, raises the question already mentioned as to whether refusing to allow an individual with a disability to use a dog can amount to discrimination against a person because of a disability. The court said Brown was entitled to qualified immunity on the 1983 claim. 

As to the county, “[f]ailure to supervise is not a viable theory for recovery of compensatory damages in a Title II ADA claim, since such failure is necessarily not directed at a particular disabled individual.”  Failure to train Sergeant Brown was also “not a specific act of intentional discrimination against the Plaintiff herself….”  The county said that “Sergeant Brown's conduct towards Plaintiff was not motivated by discriminatory intent but his genuine bewilderment at how to handle service animals. Moreover, Sergeant Brown's efforts to seek approval from Judge Randolph, including his forwarding of the papers provided by Plaintiff's husband to Judge Randolph's court officer, indicate he was not attempting to discriminate against Plaintiff.”  The claims against the county also failed as the court did not believe Sears would be able to establish “an unconstitutional policy or custom, nor actionable failure to train or supervise its officers….”  

As to the 1983 claim, the county argued that it was entitled to summary judgment “because, setting aside the question of whether Plaintiff even suffered a constitutionally-cognizable injury, Plaintiff cannot show the County had an official unconstitutional policy or custom which was responsible for the injury, or that the County was ‘deliberately indifferent’ to the rights of Plaintiff and similarly-situated individuals."  The court agreed, and noted that after the incident, “Bradley County has adopted a policy and held a training session addressing the needs of disabled individuals with service animals.” This subsequent effort to educate the County’s law enforcement personnel turned out to be significant in the case discussed next (where no such effort was made despite a previous incident). 

In other words, delay and indifference do not amount to constitutional violations, at least when the subsequent admission of the service dog can be said to preclude any proof that there was intentional discrimination against someone with a disability using a service dog. 

(For an earlier case on similar facts, which was discussed in the opinion in Sears, see Valder v. City of Grand Forks, 213 F.R.D. 491 (2003). Also, as my legal colleagues will be quick to point out if I don’t, the preamble to Department of Justice final regulations regarding access to Title II facilities specifically mentions courthouses.  75 Fed. Reg. 56192 (September 15, 2010).)

Former Police Officer with Service Dog Barred from Neighborhood Watch Meeting

Albright v. Sheriff’s Department of Rapides Parish, No. 12-2117, 2014 US Dist LEXIS 132946 (2014)

David Albright has two dogs that, in a complaint filed in a Louisiana federal district court, he says are service dogs that alert to episodes of cataplexy and narcolepsy, which cause seizures and instantaneous sleep spells.  Albright says that the dogs alert five minutes in advance to impending episodes, which can occur three to four times a day.

On August 8, 2011, Albright went to the Sieper Junction Café in Rapides Parish to attend a Neighborhood Watch meeting, where members of the Parish Sheriff’s Office were to speak.  Albright brought one of his service dogs, Zoey.  The manager of the café, Teresa Cutts, blocked Albright from entering the café with his dog.  Albright produced documentation that Zoey was a service dog, but Cutts continued to bar his entrance. 

The Rapides Parish Sheriff’s Office responded to the dispute.  Deputy Gunter spoke separately to Albright and Cutts.  A second deputy, who was not identified, arrived and told Albright he had to leave.  Deputies Davis and Walters, who had come not because of the incident but to speak to the Neighborhood Watch group were nearby.  Albright, a former police officer who had known Davis and Walters professionally, found them and asked them to intervene.  They declined, saying it was not their job to enforce federal law. 

This was apparently not the first time that Albright had dealt with the Rapides Parish Sheriff’s Department on a service dog matter.  His pleadings indicate that he had been blocked from entering the Rapides Parish Courthouse by a deputy several years before, though in that case a senior deputy intervened and permitted Albright to bring the dog inside.  Albright had discussed the courthouse incident with Deputy Davis, who Albright says agreed with him that more training on the Americans with Disabilities Act and service dogs was needed for law enforcement personnel in the Parish.  No courses or training had been initiated by the time of the restaurant incident. 

The district court determined that the Rapides Parish Sheriff’s Office “is a public entity within the meaning of Title II of the ADA.”  To establish discrimination under the ADA, the court said that Albright had to establish that (1) he is qualified for protection under the statute, (2) he was “excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity,” and (3) the exclusion, denial of benefits, or discrimination was by reason of the disability. 

To receive compensatory damages for ADA violations, a plaintiff must show intentional discrimination.  Employers are vicariously liable for the discriminatory acts of their employees.  Title II, however, does not allow actions against a person in his individual capacity, only in his official capacity.  Therefore, insofar as Albright sued Deputies Walters and Davis in their individual capacities, their motion for summary judgment was granted by the district court. 

The public entity involved was the Rapides Parish Sheriff’s Office, and any official capacity suit could only be brought against Sheriff Hilton, the current sheriff of the Parish, not against former Sheriff Wagner.  Nor could an official capacity claim be filed against deputies Walters and Davis, and therefore claims against Walters, Davis, and Wagner were dismissed. 

As to the three ADA claim requirements enumerated above, Albright filed medical records on his diagnosis and treatment.  For purposes of the motion for summary judgment, this information was adequate for the court to accept that Albright was a qualified individual under the ADA.  Also for purposes of the motion, “the presence and participation of Deputies Walters and Davis on behalf of the sheriff’s office is a service, program or activity performed by a public entity, in this case, the Rapides Parish Sheriff’s Office.”

The most difficult of the three issues that had to be resolved to assign liability under the ADA was the third, whether the exclusion was due to a plaintiff’s disability.  Louisiana district courts are within the Fifth Circuit Court of Appeals.  The Eighth Circuit has determined that to place liability on a public entity, that entity must have had “a policy, practice, or custom in place discriminating against disabled individuals with service animals.”  (Paraphrasing Pona, discussed above.) 

The Louisiana federal district court distinguished the situation before it from the one in Gipson v. Popeye’s:

“We agree that whether a service dog is permitted in a restaurant is a straight-forward question of law, but disagree that an officer would be liable if he did not convince the restaurant manager to permit plaintiff to enter with his service animal. The instant case is not one in which a deputy valiantly defended the civil rights of the plaintiff only to be refused by the restaurant manager.  Rather, the officer did not educate the restaurant manager about the ADA nor did he inform Mr. Albright of his civil rights against the restaurant. We are troubled that Defendants may have intentionally discriminated against Mr. Albright and been deliberately indifferent to his civil rights. This case is also distinguishable [from prior cases] because Mr. Albright had a previous experience in which he was refused entry into a courthouse with his service animal and personally notified Deputy Davis, a Defendant in this matter. This is very different from Sears in which an individual with a service animal was delayed entry into a courthouse and the county responded by holding a training session to address the needs of disabled individuals with service animals and display the county's new service animal policy in public buildings…. Here on the other hand, the parties agree the officers receive no training about the ADA, and Defendants seems to have no intention of training their officers about the ADA.”

The court also emphasized that Sears was “factually distinguishable from the case at bar as it involved a delay as opposed to completely barring entry and the Court found the police officer did not intentionally discriminate against the disabled party.” (emphasis added)

Therefore, the case can now proceed on Albright’s ADA claim against the sheriff’s office.  Also, the court allows for the possibility of compensatory damages, saying that although intent is necessary for such damages, the refusal to take any action upon Albright’s approaching the officers may indicate intent. 
               
Motions for summary judgment on the other federal and state law claims against the officers were granted, including claims for deprivation of various constitutional rights under 42 U.S.C. 1983 (as duplicative of the ADA claim, tantamount to allowing Albright “two bites at the same apple”).  Motions for summary judgment under Louisiana state law claims were also granted the officers, including a Louisiana White Cane Law claim and a claim under Louisiana human rights statutes (because the restaurant manager, not the officers, had denied Albright’s entry into the restaurant with the dog).  Nevertheless, a significant part of the case withstood the defense efforts to stop the litigation, and it is to be hoped that a lesson will be taught and learned. 

Proliferation of Service Animal Types and Bogus Claims Make Enforcement Difficult

It must be acknowledged that some of the service dogs described here were accompanying individuals whose disabilities were likely not evident to the businesses and police involved.  This does not mean the dogs were not legitimate service animals under the ADA, but it does mean that some level of inquiry was appropriate.  Users of service dogs should be familiar with where the boundaries lie, as I have detailed in Service and Therapy Dogs in American Society and in prior blogs here.  The rights of those with disabilities as to specially trained dogs do not extend to dogs that do not meet regulatory standards provided by the Department of Justice or by case law in jurisdictions where courts have analyzed the ADA and other relevant statutes. 

The ADA does not provide the same protections to pets, companion animals, and emotional support animals (as opposed to psychiatric service dogs), though emotional support animals receive similar protection to service animals in certain transportation and housing contexts.  What cannot be tolerated, any more than blind prejudice against users of qualified service animals, is the increasing alacrity with which some people claim that their pets are service animals merely because they do not want the inconvenience of leaving the dog at home. 

A recent case demonstrates that users of bogus service animals can be a problem for law enforcement officers.  In Lerma v. California Exposition and State Fair Police, 2014 WL 28810 (ED Cal., 2014), Regina Lerma attempted “to bring a pet Cocker Spaniel puppy into an amusement park and pass it off as a trained service animal under the ADA.”  When California Exposition and State Fair Police Officer Siegrest “asked plaintiff what task the dog had been trained to perform, plaintiff responded by stating ‘all I have to tell you is it’s a service dog and I’m going to sue you.’  … When asked how she would handle the dog’s need to relieve itself or whether it was housebroken, she responded again that she was going to sue the officer.”  At a deposition in the case Lerma filed, she “admitted that her dog was not individually trained to perform any task for her…. [P]laintiff conceded at her deposition that she took the dog to the Park because she ‘needed the dog to be able to get through the day,’ to help her feel better, and because the children wanted to bring it there.”  The defendants’ motion for summary judgment was granted.

There may be cases where police do not take the action they should because they doubt a claimed service animal is legitimate. The more people make such inappropriate claims for their pets, the more difficulties they create for those whose dogs are necessary for their disabilities. The ADA is not a magic spell that anyone can cast to ward off inconvenient questions about a dog that does not qualify as a service animal.  
 
Is There Too Much of a Shield for Police Involvement in Service Animal Discrimination?

What is the current state of the law with regard to the potential liability of the police in responding to a complaint by someone with a service animal?  It appears that if the police engage in some dialogue with the parties, even without making any attempt to explain to the business that its refusal may be a violation of an individual’s civil rights, which could result in significant liability, there will very likely be no liability on the part of the police.  Nor need the police be in any hurry to respond so long as they eventually do so, though at some point delay will be tantamount to denial and it must be hoped that courts would draw a line. A failure on the part of a police authority to educate staff as to rights of individuals with service animals will add considerable force to plaintiff’s arguments.       

I began writing this blog after the Popeye’s case was issued several years ago, but wanted to find a way to argue that there could be recovery against police officers abetting denials of service to individuals with service animals.  The best I could find at the time was to take some of the language from the non-prevailing views of the three-judge panel in Pona, the 1998 case, and rather remote extrapolations from non-service dog disability cases.  My arguments at the time, however, struck several of the people I asked to comment and frankly even me as too close to one of those rants in a law review where a professor who has never practiced takes an impossible moral high ground that would never be accepted by a judge in a trial and might not even be seriously argued by a disability rights lawyer in an actual case.  Now Albright gives me hope that things may be changing and I have finally completed this blog.

Conclusion 

It is too late in the history of American law on service animals for such things to be happening.  Everyone would be shocked if a restaurant refused to seat a customer based on race, and even more shocked should a police officer help the restaurant throw the customer out.  Failure on the part of police to understand the rights of individuals with service animals, and a lack of any educational effort at the departmental level, should deserve a severe reprimand and in some cases should result in liability. An exclusion of someone with a legitimate service animal from a restaurant is as much an exclusion on account of a disability as an exclusion of someone with a guide dog, a walker, or a wheelchair.

By allowing the police to participate in an exclusion from a public accommodation, courts permit the police to become agents of private enterprises that are denying rights guaranteed under the Americans with Disabilities Act.  This must stop. 

Appendix

The above discussion takes a particular trajectory through four cases and does not discuss every issue by which plaintiffs have attempted to impose liability on officers and their supervising agencies. The following table fills in some of the gaps for those wishing this level of detail. Since there were three separate opinions in Pona v. Cecil Whittaker’s, the judges in that case are listed individually. 

Case/Judge
Title II
42 U.S.C. 1983
Qualified Immunity
State Law Claims
Pona v. Cecil Whittaker’s
No recovery
No recovery
Not discussed
Dismissal of trial court affirmed
MS Arnold
No recovery (no policy)
Because ADA claim fails, 1983 claim based on it must fail; also ADA violation is not actionable under 1983 because it must be presumed that enforcement mechanism of ADA must be exclusive
NA
Doubts facts would satisfy state law grounds, dismissal appropriate
Panner
No recovery (policy not targeted at persons with disabilities)
Agree with MS Arnold as ADA Title II and III claims are not cognizable as 1983 claims
NA
Denial of services on account of service dog was denial of services on account of disability, but agrees that state law claim should be dismissed (without further explanation of latter point)
RS Arnold
Recovery possible (policy effectively withheld services from disabled citizens)
Not discussed
NA
Not discussed
Gipson v. Popeye’s
No recovery (Title II services provided by response and attempt to resolve conflict)
Not in issue  
Not in issue
Not in issue
Sears v. Bradley County (defendant Sergeant Brown)
No recovery in individual capacity but could be heard as to official capacity, but intent could not be shown
Could have been liable had Sears shown she suffered violation of clearly established constitutional right of which a reasonable person would have known, but burden not met
Sergeant Brown entitled to qualified immunity on 1983 claim
State law claims dismissed without prejudice
Id. (defendant Bradley County)
Failure to supervise not valid theory under ADA
No recovery (no unconstitutional policy or custom, nor actionable failure to train or supervise)
NA
Id.
Albright v. Rapides Parish
Recovery possible as to Parish (see text discussion for distinction between liability of officers and sheriff’s department)
Duplicative of ADA
Not discussed
Summary judgment granted officers

Thanks to Leigh Anne Novak for suggestions.