Monday, May 2, 2016

Committee Appointed to Consider Amending Definition of “Service Animal” for Flight Access

A previous blog described the decision of the Department of Transportation last December to initiate a negotiated rulemaking (Reg-Neg) process under which stakeholders would advise the Department on a number of access issues for air travelers with disabilities. The Department had received 68 comments by the closing of the extended comment period on January 21, but has continued to post comments submitted after the deadline. There are now 110 comments on the webpage devoted to the proposal

The rulemaking process has taken a step forward with the appointment of an ACCESS Advisory Committee that will make recommendations with respect to three issues: (1) whether to require accessible inflight entertainment (IFE) and strengthen accessibility requirements for other in-flight communications; (2) whether to require an accessible lavatory on new single-aisle aircraft over a certain size; and (3) whether to amend the definition of “service animals” that may accompany passengers with a disability on a flight.  The following individuals and organizations have been appointed to the Committee:
  1. Michelle Albert, Boeing Commercial Airplanes
  2. Zainab Alkebsi, National Association of the Deaf
  3. Mary Barnicle, United Airlines
  4. Kelly Buckland, National Council on Independent Living
  5. Curtis L. Decker, National Disability Rights Network
  6. Parnell Diggs, National Federation of the Blind
  7. Paul Doell, National Air Carrier Association
  8. Geoff Freed, National Center for Accessible Media at WGBH
  9. Brian Friedman, JetBlue Airways
  10. Laurie A. Gawelko, Service Dog Express, LLC
  11. Lise Hamlin, Hearing Loss Association of America
  12. Dr. Katherine Hunter-Zaworski, Oregon State University
  13. Candace Kolander, Association of Flight Attendants
  14. Doug Lavin, International Air Transport Association
  15. Russ Lemieux, Airline Passenger Experience Association
  16. Lorne Mackenzie, WestJet Airlines
  17. David Martin, Delta Air Lines
  18. Orit H. Michiel, Motion Picture Association of America
  19. Bradley W. Morris, Psychiatric Service Dog Partners
  20. Lawrence Mullins, Lufthansa Group
  21. Lee Page, Paralyzed Veterans of America
  22. Deborah Lynn Price, Frontier Airlines
  23. Roser Roca-Toha, Airbus
  24. Alicia Smith, National Alliance on Mental Illness
  25. Anthony Stevens, American Counsel [sic] of the Blind
  26. Jennifer Sunderman, Regional Airline Association
  27. Blane A. Workie, U.S. Department of Transportation (Designated Federal Officer)
Thus, two participants are from service dog organizations, though others are from disability rights groups that will undoubtedly have perspectives on the service dog mandate of the Committee. Other service and guide dog groups had put themselves forward as potential participants but were not chosen. 

First Meeting of Committee Announced, Public Invited

The first meeting of the Committee will be held on May 17 and 18 at the Omni Shoreham Hotel, 2500 Calvert Street NW, Washington DC 20001 (202-234-0700).  Although the meeting is open to the public, the size of the room only allows for 150 attendees, so those wishing to attend are advised to contact Alyssa Battle (Abattle@linkvisum.com; 703-442-4575) or Kyle Illgenfritz (kilgenfritz@linkvisum.com; 703-442-4575, ext. 128) to reserve a space.  The Committee will terminate upon submission of its recommendations or after two years, whichever happens sooner.  The Federal Register release states:

The Committee will dedicate a substantial amount of time at the first meeting to establishing the rules, procedures, and process of the Committee, such as outlining the voting rights of the Committee members and defining the meaning of “consensus.”

Additional tentative dates for Committee meetings are June 14-15, July 11-12, August 16-17, September 22-23, and October 13-14. Notices of future meeting locations, and firm dates, will be announced in the Federal Register at least 15 days prior to each meeting.

Members of the public may submit written comments on the three topics to be considered by the Committee through the regulations.gov website, referencing Docket No. DOT-OST-2015-0246. This means that other individuals and organizations interested in being heard on the issues that will be discussed by the Committee have additional time to comment.  Department of Transportation, Negotiated Rulemaking Committee Membership and First Meeting, RIN 2105-AE12, 81 Fed. Reg. 26178, May 2, 2016.

Sunday, April 24, 2016

Dog Parks Become a Permanent Feature of the American Landscape

Interstate 40 Rest Stop Rules
In 2011, Fran Breitkopf and I drafted model dog park code provisions and rules for an article that was posted on the website of the Animal Legal & Historical Center of Michigan State University’s College of Law.  The article proved useful to the creators of a number of parks, but we became increasingly nervous about not updating it to take into account legal and social developments in the last five years.  We have now revised the article to take into account developments into 2016 .

Hundreds, perhaps thousands, of new parks have been created since our article was first posted and we expected that legal developments, both legislative and judicial, would mean the original article was seriously out of date.  To our surprise and admittedly our relief, the number of legal developments we needed to incorporate in our discussion was less than we had anticipated. 

Most recent disputes we found in searching Westlaw and Lexis-Nexis have been about creating parks, particularly situations where one group of citizens opposed a municipality granting another group of citizens the right to establish a park on a particular site, which the first group of citizens found offensive because of noise, potential pollution from dog waste, proximity to a school or medical facility, or merely because a dog park would be of no interest to the majority of the inhabitants of a community.  Most of these lawsuits failed to stop the creation of a dog park for the simple reason that too many people saw the need for one and citizen groups were often willing to take on sanitation and other responsibilities to assure the success of the park. 

Lawsuits in tort because of injuries from poor design proved to be rare, as were conflicts between users that lasted long enough or became serious enough to result in litigation.  Dog bites happen but, since many users take their dogs to the parks in order to provide socialization for their animals, the number of serious bites—again, reaching reported litigation—has been fairly low.  Users of dog parks are often successful in shaming those who do not know how to control their animals into keeping them away from the park. (It would be an interesting sociological study to analyze whether dog park users are more likely to train their dogs than dog owners generally.) 

Selling Fence Space for Advertising Can Be a Source of Funds
Obtaining adequate police and animal control coverage for dog parks continues to be a problem for some communities, and may indicate that some states should take a closer look at whether enforcement authority over dog parks is clearly assigned to state or municipal police or to a county sheriff's department. Related to this are situations where animal control authorities have declined to respond to incidents, perhaps because of some doubt as to their enforcement authority inside of dog parks. Here also, however, few such problems have come to our attention.

In other words, dog parks are working, and we believe that society is increasingly recognizing their usefulness, just as other public places, like graveyards, flower gardens, monuments, town squares, playgrounds, and recreational areas have been part of our landscape since the settling of North America. We believe this trend will continue.

We received the help of many parks and citizen groups around the country in writing the piece for the Animal Legal & Historical Center, many of which are referred to in the footnotes to the article. We invite readers who become aware of developments they believe should be included in our discussion to email us. Thanks again to everyone who has helped with this project and good luck to those who are attempting to build new parks in their communities. 

Monday, March 28, 2016

If Your Dog Doesn’t Alert, We Can’t Search the Car, So Let's Call that Jump an Alert: Florida v. Harris Doesn't Throw Out Many Sniffs, but This One Had Too Many Flaws

Gregory Heald was stopped for a traffic infraction on July 16, 2015.  During the stop, a K-9 team performed a sniff of the vehicle, which led to a search during which police discovered narcotics, paraphernalia, a firearm, and a cell phone with incriminating information. Heald moved to suppress the evidence found in his vehicle as fruit of an illegal search. Although the federal court for the Western District of Arkansas determined that the officer stopping Heald had reason to prolong the stop, the court also determined that the search of the vehicle violated the Fourth Amendment. U.S. v. Heald, No. 5:15-CR-50064-001, 2016 WL 797587 (WD Ark., February 25, 2016). 

A concerned citizen of Springdale, Arkansas, began calling police to tell them about suspicious activity at a neighbor’s house, activity that suggested the occupant might be engaging in drug trafficking. The police put the house under surveillance. The police followed a silver Toyota Camry that had been parked in the driveway of the house, and which the concerned neighbor said she may have seen loaded with several bags taken from the house. After stopping at a market, the driver of the Camry committed several minor traffic infractions, for which the police stopped the car. Equipment in the police car captured both video and audio of the stop. 

After calling dispatch with license and registration information on the driver, Gregory Heald, Officer Guillermo Sanchez asked to search the Camry, but Heald denied the request. Sanchez asked if Heald had anything illegal in his vehicle, which according to Sanchez made Heald nervous. Sanchez asked the dispatcher to send a K-9 team but was told that the on-duty team was busy and that he would have to wait for an off-duty team to arrive. One of the other detectives on the scene suggested that Sanchez get Heald out of the car and engage him in small talk until the K-9 team could arrive. The K-9 team arrived about 26 minutes after the stop began. 

During the interval before the K-9 team arrived, Sanchez asked Heald why he was sweating so much and Heald replied that it was hot and that he smoked two packs a day. Heald acknowledged that he had been charged in Colorado with “conspiracy for meth.’” Heald declined to grant permission for a search of his person. Sanchez eventually told Heald that they were waiting for a K-9 unit. At 4:22 p.m., Officer Edgar Hernandez arrived with his K-9 partner, Bosco, and within two minutes they began their open-air drug sniff. 

Bosco

Bosco’s history is described by the federal district court as follows:

Bosco is a 3 or 4 year-old German Shepard [sic] that was imported from Hungary by Criss Gardner, the owner of Von Klein Stein Working Dogs in Sherwood, Arkansas. Bosco attended Gardner’s Working Dogs school beginning in February or March of 2015 to learn to be a narcotics detection dog. After 8 to 10 weeks of training, Bosco’s handler, Officer Hernandez, began training with him at the Working Dogs school. Their training together included detection of methamphetamine, in addition to other types of drugs. Bosco was trained to signal the presence of narcotics with a passive alert. This means that when Bosco detects the scent of drugs, he is supposed to sit or lie down. Bosco and Officer Hernandez both performed well at the school. Consistent with this performance, Bosco’s SPD training records from April 20, 2015 and May 27, 2015 indicate that he correctly located methamphetamine during training, and his training logs from the months of June and July of 2015 show satisfactory performance across the board.

Bosco generally worked at night.  In ten situations in which he had alerted, drugs were found nine times.  The one time nothing was found involved a driver who admitted that he had recently smoked marijuana in his vehicle.  The afternoon that Bosco and Hernandez were called to perform a sniff, despite the fact they were off-duty, is described by the court as being very hot. 

On July 16, 2015, Officer Hernandez was off-duty at Wal-Mart when he was asked whether he and Bosco could perform an open-air drug sniff on Heald’s vehicle. While Officer Hernandez was at Wal-Mart, Bosco was in the backyard at Officer Hernandez’s house, in over 90-degree heat. Officer Hernandez drove home from Wal-Mart, parked in his driveway with his windows rolled up, turned off his vehicle, and went inside to change into his police protective gear. After he changed into his gear, he brought Bosco out to his vehicle and put him in the back seat. He noticed that the vehicle was hot, and that Bosco was hot. Additionally, the air conditioning did not work well in his vehicle, so the ride from Officer Hernandez’s house to Heald’s vehicle was hot for Bosco as well. In short, Bosco was very hot by the time he got to Heald’s vehicle, and he was not accustomed to working in such conditions, as all of his previous shifts were during the cool of night.

Although 90 degrees is hot, the dog was in a back yard and not working, and it would not automatically be expected that this should have prohibited working.  If it did prohibit working with this particular dog, the handler’s knowledge of this limitation should have been explored further. 

The Long Sniff

The court notes that when Hernandez and Bosco arrived at the location where Heald’s car had been stopped, Bosco was panting and his tongue was “drooping out of his mouth.”The court gives additional detail:

The sniff begins on the front driver side of the vehicle. Officer Hernandez—at this point and frequently throughout the search—uses his hand to guide where he wants Bosco to sniff. As he later testified, this is a method to keep the K-9 focused, and whenever he employs the method, it means that Bosco is not focused on the sniff….  On the first pass by the driver side, Bosco pays no attention to the car. On the second pass, Bosco follows Officer Hernandez’s hand when he flicks his wrist through the open front driver-side window, and briefly places his front paws on the window opening. Officer Hernandez next leads Bosco on an uneventful trip around the back and passenger side of the vehicle, then takes him off camera to down him in the shade. After another brief pass by the passenger side about 30 seconds later, Officer Hernandez again downs Bosco in the shade.

A handler guiding a dog’s sniff with his hand for a detailed sweep is sometimes an indication that a dog is not fully trained.  After spending a minute in the shade, the following happens:

Officer Hernandez brings Bosco to the passenger side of the vehicle. On this pass, Bosco places his paws on the rear passenger side door, again after Officer Hernandez places his hand there. The team continues around the front of the vehicle, and along the driver side a few times. On the second pass by the driver side, Bosco again puts his paws on the front window opening after Officer Hernandez points to it. On the fourth pass, Bosco does the same thing, again after Officer Hernandez places his hand in the area. After a few more uneventful passes by the rear and passenger side of the vehicle, Officer Hernandez takes Bosco into the shade at the 16:28:20 mark of the video.

Hernandez told one of the officers on the scene that Bosco was “burning up.” Some effort to find water was made but it is not stated that any was found. Three minutes later Hernandez again led Bosco to the Camry.

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle. Moving around to the driver side, Bosco again places his paws on the window opening. This time, while Officer Hernandez’s hand is tracking along the top portion of the side of the vehicle, he does not motion up towards the opening. After a couple more passes by the rear of the vehicle, Officer Hernandez brings Bosco to the shade again. Around the same time, at 16:32:11, Officer Sanchez’s in-car audio recording picks up a conversation between two unidentified persons. The first asks “did they get an indication yet?” and the second responds that it “doesn’t appear so.”

Hernandez tries yet again:

Officer Hernandez reinitiates the sniff on the passenger side of the vehicle at 16:32:16. On his second run down the passenger side of the vehicle, Officer Hernandez keeps his hand low, apparently as a guide to get Bosco to focus on the lower portion of the vehicle. At 16:32:30, while Officer Hernandez’s hand is low, Bosco lies down for an instant. He does this again five seconds later. Officer Hernandez then takes Bosco to the shade, and at 16:33:00 says “he’s not even looking, he’s fucking burning up ... let me run him one more time, but he’s burning up.” Following this statement, the conversation becomes difficult to hear. But, listening in Chambers with noise-cancelling headphones, the Court believes that Officer Sanchez says something along the lines of “I thought it was an alert, like right there” or “I thought it was—what happened right there?”—a reference to Bosco having just lied down twice at the passenger side. It sounds to the Court like Officer Hernandez then responds “well, that’s just to kind of to get him to check [inaudible for a couple of seconds] the car, so it’s not a—not an alert.”

The description indicates that Bosco may have been lying down from both the fact Officer Hernandez was keeping his hand low, almost like a hand signal to lie down, and perhaps partially from the heat. In any case, there is no indication this was taken as an alert by the handler. The court's description also shows how badly some of the officers involved wanted something to be called an alert, even though Hernandez, as the handler, was the only one who should have been able to call an alert.  Hernandez tried one last time:

Officer Hernandez begins the final run on the driver side of the vehicle at 16:34:40. On the first pass, Bosco does not pay attention to the vehicle. Officer Hernandez then jerks his leash a bit, and runs Bosco down the driver side again, this time using his hand as a guide. As Officer Hernandez passes by the open front window, he again flicks his hand in the window. After a short pause, Bosco jumps into the vehicle through the window. This happens at 16:34:49. At 16:34:55, Bosco honks the vehicle’s horn. Bosco jumps back out the window at 16:34:59. This essentially concludes the open-air drug sniff.

After this, Hernandez can be heard in the audio saying, “I’m fucking debating it because he’s not suppose to jump in cars like that—nunca,” using the Spanish word for never.  Nevertheless, a minute later Sancez announced that “we’re gonna search,” and he proceeded to do so.  The court noted that “Officer Hernandez chose to omit Bosco’s jump from his written report and instead wrote that Bosco provided a final indication on the passenger side of the vehicle,” which was not a reference to the jump but rather to the dog’s lying down several minutes earlier, which the audio indicates was not being recognized as an alert at the time it happened. 

The search revealed:
  • two plastic baggies with methamphetamine
  • one meth pipe
  • syringes
  • one scale
  • firearm (in trunk)
  • cell phone (in trunk)
Heald was arrested at the scene. Subsequently he was indicted by a grand jury for intent to distribute methamphetamine and for being a felon in possession of a firearm. A superseding indictment added a charge of possession of a firearm in furtherance of a drug trafficking crime.

Bosco’s Alert Insufficient to Create Probable Cause

The federal district court found that Officer Sanchez “had the reasonable suspicion of criminal activity necessary to prolong the duration of Heald’s seizure beyond the time necessary to investigate a traffic infraction.”  The case, however, fell apart because of the circumstances of Bosco’s sniff.  The court began its analysis of the sniff by reviewing the U.S. Supreme Court’s decision in Florida v. Harris, 133 S.Ct. 1050 (2013), noting that Justice Kagan had allowed that “circumstances surrounding a particular alert may undermine the case for probable cause.” 

The district court found no fault with “Bosco’s (or Officer Hernandez’s) training and certification records,” but it did have a problem with “the circumstances surrounding Bosco’s supposed alert….”

To begin, Bosco had never conducted a single sniff in the field during the day time, let alone in over 90-degree heat…. Add to this the fact that Bosco had been in Officer Hernandez’s backyard in the heat for some time that day, and then travelled in a hot car before arriving to the scene, and any reasonable person would begin to question Bosco’s ability to reliably perform. Indeed, Officer Hernandez himself testified that on a scale of 1 to 10, with 10 being concerned that Bosco was about to die, he was at a 7 that day…. Moreover, Officer Hernandez knew that the heat was in fact affecting Bosco’s performance. He stated at the time that Bosco was “fucking burning up” and “not even looking.” … This cause for concern was, ironically, at least somewhat corroborated by the Government’s own expert. Criss Gardner testified that, in viewing the MVR, he “immediately could see a dog that was overheated,” and that the high heat would “absolutely” affect Bosco’s performance or actions…. Remarkably, after Mr. Gardner had commented that Officer Hernandez appeared frustrated with Bosco, he stated that “most dogs that get frustrated or really want to get out of the heat, they will give you a sit response in some cases. Again, you know, they will try to sit to appease the handler.” … In other words, an overheated and frustrated dog, like Bosco was that day, is prone to giving false alerts.

The court noted that the duration of the sniff was “unusually long,” and said that while this was “normally an innocent factor,” here it indicated that “as the minutes passed, Bosco’s exposure to the heat became prolonged, and so his ability to perform continued to diminish.” 

Training May Not Have Been Adequate

Jumping through a window was not how Bosco was trained to alert.  Rather “he sits or lies down to display final indication when he detects the presence of narcotics.” 

Officer Hernandez was uncertain about whether Bosco’s leap even constituted an alert. He stated to Officer Sanchez that he was “fucking debating it” because Bosco is never supposed to jump in cars…. The Court believes that a reasonable person would no doubt share Officer Hernandez’s skepticism. An overheated dog exhibiting a new and untrained behavior is not a shining example of reliability.

Defense counsel, in moving to exclude the canine evidence, had correctly noted that the jump through the window might have been an indication the dog was not properly trained:

Additionally, it appears that the K-9 was not adequately trained. According to Officer Hernandez, “Bosco” jumped inside the vehicle through the open driver’s side window. As Officer Hernandez noted, “Bosco” was not trained to jump inside cars. This activity calls into questioning the K-9’s training. Moreover, while the K-9 in this matter appears to have received training approximately three months prior to participating in this case, the training logs do not appear to log any false detections which is suspicious. The records do not reflect the amount of substances the K-9 is trained in. The records also appear to show that the K-9 only logged two days of training in narcotics detection on the exterior of vehicles prior to participating in this case, with only one of those days involving methamphetamine detection. (brief in support of motion retrieved from Pacer)

The failure of the dog to alert to methamphetamine should also have received more analysis.  A dog trained on methamphetamine produced by one cooking method will sometimes not alert to methamphetamine cooked another way. It is advisable to train on pharmaceutical grade materials when possible, but Bosco may have been trained on batches of methamphetamine cooked in the same way. 

Handler Changes Position on Alert

Because the microphone was briefly obstructed, the court noted that it could “not know how Officer Hernandez went from ‘debating it’ to determining that Bosco’s jump was an alert creating probable cause.” This, of course, assumes that the Hernandez had not changed his mind about the dog lying down when he was pointing low, though this is unclear.  Because the court’s description of the circumstances around declaring an alert might be seen as suggesting that Officer Hernandez had changed his opinion in hindsight, perhaps under pressure to create a reason for a search, the court felt obliged to defend the officer’s behavior:

None of this is to say, or suggest, that Officer Hernandez’s conduct was dishonest. Rather, the Court agrees with his own assessment—that he was “not on his game” that day—and further believes that he was not on his game when he later wrote his report…. Thus, to an overheated K-9 working in unfamiliar conditions, exhibiting a behavior that he was not trained to exhibit, the Court can add an understandably distracted handler, who, to boot, flip-flopped on how and whether Bosco alerted: In the moment, Officer Hernandez was debating whether Bosco’s jump was an alert. And then later, he identified as an alert a behavior (Bosco’s lying down) that he said in the moment was not an alert.

Although the court may have inserted such a comment to shield Officer Hernandez from administrative criticism or sanctions, in the context of a criminal prosecution this also limits the defendant’s ability to call into question the actions of an officer who is providing evidence to be used against him. Clearly Hernandez was addled and feeling pressure to justify a search from the other officer’s present.  Nevertheless, he should not have responded to that pressure by calling an alert from behavior that the dog had not been trained to use as an alert, as the court believes he had done.

Cueing

The court then considers “unintentional cueing.” 

The Court cannot help but observe that whenever Bosco was focused on the vehicle, he followed Officer Hernandez’s hand almost the entire time. When Officer Hernandez had his hand low, Bosco sniffed low; when he had his hand high, Bosco sniffed high. When he flicked his wrist towards the open window, Bosco jumped on the window opening, or jumped through that opening.

The expert witnesses for the prosecution and defense disagreed as to whether the handler’s conduct could lead to unintentional cueing, but the court concluded it was a “possibility.” Given the number of passes and the amount of pointing, the dog's thirst and likely desire to get water or be somewhere else, it is perhaps interesting that there was not more alerting behavior.  Thus, to say that cueing was only a possibility, and to say that it was unintentional, is to give some slack to Officer Hernandez.

Combination of Factors Undermine Reliability of Alert

The court did not think any single problem with the circumstances of the alert meant that probable cause was not established, but felt the combination of the problems did:

Any one of the above factors alone would not be sufficient to render Bosco’s supposed alert unreliable. The mere fact that it was hot out is alone not enough; that Bosco previously only worked in the cool of the night is alone not enough; that the heat admittedly affected Bosco’s performance is alone not enough; that Bosco was often not paying attention is alone not enough; that his supposed alert was not how he was trained to indicate is alone not enough; that Officer Hernandez was off his game and distracted is alone not enough; that he could not readily determine whether Bosco alerted is alone not enough; that he later changed his version of how Bosco alerted is alone not enough; that there was some possibility of unintentional cueing is alone not enough; and that the sniff lasted an abnormally long time is alone not enough. But, taking all of these facts together, and viewing them in the totality of the circumstances, a reasonable person would not think that Bosco’s actions created a reliable alert, such that a search would reveal contraband.

The court thus concluded that there was insufficient evidence that Bosco had alerted, but that even if he had, the alert “was not sufficiently reliable to establish probable cause.” 

The court ruled that the evidence found as a result of the search had to be suppressed. 

Conclusion

It is our interpretation on the facts as presented by the court that there was no alert, and that the official record thus appears to have been falsified.  This alone should lead to a dismissal.  The entire episode suggests a rather insecure handler, with the repeated association of the neutral stimulus with whatever reward system the handler used creating a strong possibility of cueing an alert to get the reward. For a discussion of relevance of the work of Pavlov and Skinner in this regard, see “Training Fundamentals and the Selection of Dogs and Personnel for Detection Work,” by Minhinnick, Papet, Stephenson, and Stephenson, forthcoming in Canine Olfaction Science and Law.

We have argued in the Journal of Animal and Natural Resource Law that Florida v. Harris comes very close to making dogs “walking search warrants.” It might be argued that this case conflicts with our argument and indicates that courts will continue to be critical of questionable practices during sniffs of vehicles.  Nevertheless, the court required a number of problems to exist before it negated the search here: (1) an overheated dog; (2) a variation in standard work temperatures and time of day for the dog and handler; (3) calling an alert from behavior the dog was not trained to use in an alert; (4) an officer “off his game and distracted;” (5) that officer’s alteration of the official record; (6) the possibility of unintentional cueing; and (7) an abnormally long sniff.  To require that all these circumstances be present would limit the value of the decision to this case alone. To require that more than half of them be present would not widen the applicability of the decision very much. 

It is also to be noted that the defendant would not have been successful in defeating probable cause here without both the video and audio of the stop. Since many stops do not have clear audio (not all the audio was clear here), the defense bar should be pushing for universal use of audio equipment along with video equipment. 

To say, as the court did, that the possibility of cueing would not alone overcome the value of an alert is particularly disturbing.  If the possibility is remote, such a perspective may be justified, but if there are clear indications that cueing is likely (regardless of how much intention was involved), then reasonable cause for a search has not been provided. In no event should a behavior that a dog is not trained to give as a final indication be taken as an alert, even if the handler is the one calling it an alert on the scene. Unfortunately, we believe that the case is such an outlier that it reinforces the defects of Florida v. Harris rather than adding nuance or limitation to that case’s applicability. 

This blog was written by John Ensminger and L.E. Papet.  
© John Ensminger and L.E. Papet 2016.

Monday, March 21, 2016

Child Witnesses on the Stand with Dogs at Their Feet: Judges Deal with Complex Issues While Lawmakers Look for Photo Ops

The law on dogs accompanying children and vulnerable witnesses during testimony continues to develop, both in terms of courts accepting the practice and state legislatures enacting statutes to permit it.  For four years now I have been maintaining an article on this topic on the website of the Animal Legal & Historical Center of Michigan State University and I have just updated that article for the fourth time. 

While the trend towards acceptance of this canine function is a positive one, I continue to be concerned that certain interest groups are having too much influence, particularly with state legislators who are looking for sound bites where they can show their concern for abused children and have themselves photographed with cute puppies.  The approaches of some state legislatures, and some courts, are at risk of creating an unnecessary monopoly on who may train these dogs, with consequent limitations on the number of dogs that can be made available and overly rigid formats on how they can be used in the courtroom.  I believe that this area of law should, at this time, be allowed to develop organically from the cases presented to the criminal courts—that, in other words, the common law tradition should be allowed to develop free of legislative grandstanding. 

Tuesday, March 8, 2016

VA Finalizes Transport Rules for Service Dogs: They Actually Listened to Me (well, sort of)

In May 2015, the Department of Veterans Affairs proposed to amend its regulations concerning transportation of persons for “examination, treatment, and care” under the Veterans Transportation Service (VTS). The proposed regulatory language contained two references to service dogs, the second of which also mentioned guide dogs.  The first mention of service dogs, in proposed 38 CFR 70.71(b), specified that the VA could provide transportation services to veterans when authorized for purposes of training a service dog as defined in 38 CFR 17.148.  That proposal has now been finalized without change. 

The second reference in the 2015 proposal, in 38 CFR 70.73(a), stated that someone requesting transportation services should contact the facility at which the examination, treatment, or care was to be received and provide the facility with the information necessary to arrange transportation.  The facility should be given the name of the veteran or service member involved and any special needs that would have to be accommodated.  Special needs requiring accommodation could include “a wheelchair, oxygen tank, or a service or guide dog.”  That proposal has not been finalized as stated, but rather now reads that a special need about which the facility is to be informed could include “a service animal as defined in 38 CFR1.218(a)(11)(viii).” 

Thus, when transporting a veteran for training of a service dog, the dog must fit within the definition of 38 CFR 17.148, but when transporting a veteran to a facility where the veteran is to receive treatment, the veteran can be accompanied by a service animal as defined under 38 CFR 1.218(a)(11)(viii), a much broader definition.  The proposed rule had not included a definitional reference for  a “service or guide dog” that could accompany a veteran going to a treatment facility and I was concerned about the absence of such a cross-reference. It was too easy to imagine that the reason the rule did not contain such a cross-reference would be interpreted as meaning that the same definition as used earlier in the contiguous set of regulations should apply in the case of a dog accompanying a veteran for treatment. The relevant language of the proposed and the final rules is highlighted in the following table:   

Regulation
2015 Proposed Version
2016 Final Version
38 CFR 70.71 Eligibility.
(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications, prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
(b) Enrolled veterans. Regardless of a veteran’s eligibility for beneficiary travel, VA may provide VTS to veterans enrolled in VA’s health care system who need transportation authorized under § 70.72 for:
(1) A scheduled visit or urgent care;
(2) Retrieval of, adjustment of, or training concerning medications and prosthetic appliances, or a service dog (as defined in 38 CFR 17.148);
(3) An unscheduled visit; or
(4) To participate and attend other events or functions, as clinically determined by VA, for the purposes of examination, treatment, or care.
38 CFR 70.73 Arranging transportation services.
(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g., wheelchair, oxygen tank, service or guide dog), and other relevant information. Transportation services generally will be provided on a first come, first served basis.
(a) Requesting VTS. An eligible person may request transportation services by contacting the facility director or designee at the VA facility providing or authorizing the examination, treatment, or care to be delivered. The person must provide the facility director or designee with information necessary to arrange these services, including the name of the person, the basis for eligibility, the name of the veteran or servicemember they are accompanying (if applicable), the time of the appointment (if known), the eligible person’s departure location and destination, any special needs that must be accommodated to allow for transportation (e.g. wheelchair, oxygen tank, or service animal as defined in 38 CFR 1.218(a)(11)(viii)), and other relevant information. Transportation services generally will be provided on a first come, first served basis.

Why Two Regulatory Definitions of Service Animals in the VA Regs?

In order to understand the significance of the change the VA made in finalizing its rule concerning a request for transportation services for treatment, one must first understand why the VA rules contain separate definitions for service dogs, in 38 CFR 17.148, and service animals, in 38 CFR 1.218. 

The definition in the historically earlier provision, 38 CFR 17.148 (finalized in 2012) was primarily a funding regulation “to authorize benefits to a veteran with a service dog.”  The benefits that might be provided did not include buying the dog, since “a majority of service dogs are acquired by veterans with little or no out of pocket cost.”  The benefits did, however, include traveling to obtain the dog, as well as “repairing or replacing harnesses or other hardware, providing annual and emergent veterinary care, providing prescription medications, or paying for other services when prescribed by a veterinarian.”  Grooming was not an included benefit, and neither were nonspecialized leashes, collars, or dog licenses.  No expenses would be covered for a service dog that has been retired.  Dogs for which a veteran could receive benefits had to mitigate the effects of a visual, hearing, or substantial mobility impairment, and could not be solely for a mental disability, such as PTSD.  The dogs also had to be trained by full members (i.e., not provisional members) of the International Guide Dog Federation (IGDF) or Assistance Dogs International (ADI).  I have railed against the inequities of this rule for years, but there is no point in dredging that up for the present discussion. 

The second definition, in 38 CFR 1.218, was finalized much more recently in August 2015, in fact after the transport proposal of May 2015, and concerns access to VA property. That provision largely follows the highly reasoned positions of the Department of Justice, allowing dogs trained for mental disabilities and imposing no organizational training requirement. The rule applies to veterans accessing VA facilities, but also to visitors and employees. I have also sung the praises of these well-reasoned rules before.  The following table highlights the language in the two definitions that is important for understanding the cross-references in the now-final transport rules. 

38 CFR 17.148 Service dogs.
38 CFR 1.218 Security and law enforcement at VA facilities. 
(a) Definitions. For the purposes of this section:
Service dogs are guide or service dogs prescribed for a disabled veteran under this section.
(b) Clinical requirements. VA will provide benefits under this section to a veteran with a service dog only if:
(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and
(2) The VA clinical team that is treating the veteran for such impairment determines based upon medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Note: If other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.
(3) For the purposes of this section, substantial mobility impairment means a spinal cord injury or dysfunction or other chronic impairment that substantially limits mobility. A chronic impairment that substantially limits mobility includes but is not limited to a traumatic brain injury that compromises a veteran's ability to make appropriate decisions based on environmental cues (i.e., traffic lights or dangerous obstacles) or a seizure disorder that causes a veteran to become immobile during and after a seizure event.
(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:
(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.
...
(d) Authorized benefits.
...
(2) Hardware or repairs or replacements for hardware, that are clinically determined to be required by the dog to perform the tasks necessary to assist the veteran with his or her impairment....
(3) Payment for travel expenses associated with obtaining a dog under paragraph (c)(1) of this section. Travel costs will be provided only to a veteran who has been prescribed a service dog by a VA clinical team under paragraph (b) of this section.... Note: VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving under this section for the service dog that the veteran needs to replace.
(4) The veteran is responsible for procuring and paying for any items or expenses not authorized by this section.  This means that VA will not pay for items such as license tags, nonprescription food, grooming, insurance for personal injury, non-sedated dental cleanings, nail trimming, boarding, pet-sitting or dog-walking services, over-the-counter medications,or other goods and services not covered by the policy.  The dog is not the property of VA; VA will never assume responsibility for, or take possession of, any service dog.
(5) Dog must maintain ability to function as a service dog....
(a)(11) Animals. (i) Service animals, as defined in paragraph (a)(11)(viii) of this section, are permitted on VA property when those animals accompany individuals with disabilities and are trained for that purpose. A service animal shall be under the control of the person with the disability or an alternate handler at all times while on VA property. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (e.g., voice control, signals, or other effective means). VA is not responsible for the care or supervision of a service animal. Service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.
(viii) A 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 individual's disability. 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. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under 38 CFR 17.148.

After the funding rule was implemented in 2012, some VA facilities used it as a limiting provision as to what kinds of service animals could enter VA facilities. Even in 2012 the VA had indicated that it was going to issue additional guidance on service animal access to facilities, but in the absence of more formal guidance, it is not surprising that this confusion continued for three years until the access guidance was promulgated in August 2015.  Unfortunately, I have been advised since posting this blog that some facilities are still adhering to the funding rule as a means of defining access to a facility. Despite the scandal regarding delays in providing appointments to veterans in Phoenix, a change in leadership, and many high-profile announcements about improvements, the incompetence of the VA continues to amaze and appall.  

Although not discussed in the preamble to the final rules, it is important to note that the provision regarding transportation for dog training in 38 CFR Part 70 would only apply to a fully trained service animal, regardless of which cross-reference applied. In 38 CFR 17.148(c)(1), the “dog and veteran must have successfully completed a training program….”  Under 38 CFR 1.218(a)(11)(viii), a service animal is “any dog that is individually trained….”  Thus, transporting a dog for training under 38 CFR 70.71(b)(2) must be interpreted as not taking a dog somewhere to qualify it as a service dog or animal, but rather as taking it to some location where the dog's skills will be sharpened and maintained. Traveling to obtain a dog under 38 CFR 17.148 generally would involve a period of acclimation between the veteran with the disability and the dog, which is often the final stage of the dog's precertification training but, as will be explained below, this is not a stage covered by 38 CFR 70.71(b)(2), but rather under 38 17.148(d)(3).   

Significance of Two Definitions to the Transport Rules

As I already stated, the initial transport proposal in May 2015 only referred to one definition.  In fact, there was only one definition of “service dog” in the VA rules at that point, the funding definition, because the facility access definition was then only a proposal, a possibility.  Nevertheless, there was every indication that the proposal would be largely finalized as written—which happened in August 2015—and I foresaw a problem about which I blogged and concerning which I submitted a comment to the VA. It was, in fact, the only comment submitted by anyone on the VA’s transport proposal. 

I noted that as written the proposed transport rule, referring to only one definition of service dog in the provision regarding transport for training purposes, would likely be the definition relied upon by facilities and transport services in determining what kinds of service dogs could accompany veterans to treatment facilities.  Given that the facility access proposal would allow a much broader group of service animals to come into VA facilities with veterans using them, it would be very odd indeed if transport to a facility was denied to the same veterans and their animals.  Here is how the VA acknowledged and responded to my comment:

As noted by the commenter, the lack of consistency in referencing § 17.148 in both §§ 70.71(b)(2) and 70.73(a) creates confusion as to whether a different meaning of the term “service dog” should be applied when determining VTS eligibility under § 70.71, versus when determining what is required to arrange or request VTS transport under § 70.73. As also noted by the commenter, a proposed revision to another VA regulation would define the term “service animal” in 38 CFR 1.218(a)(11) more broadly than the term ‘‘service dog’’ is defined in § 17.148. See 79 FR 69379. Since VA received this comment, § 1.218(a)(11) has been revised to include this broader definition of “service animal.” See 80 FR 49157 [August 17, 2015]. Ultimately, the commenter asserted that § 70.71(b)(2) should be revised to refer to the broader definition of “service animal” in § 1.218(a)(11).

We agree with the commenter that if a person is eligible for VTS and traveling with a service animal, then the broader definition of “service animal” in § 1.218(a)(11) should be used in VTS regulations. As noted by the commenter, if the broader definition of “service animal” in § 1.218(a)(11) was not used in VTS regulations, then VA may create conflicting situations where a person would be permitted to bring a “service animal” as defined in § 1.218(a)(11) into a VA facility, but would not be able to use VTS to be transported with such an animal to or from a VA facility. We therefore revise § 70.73(a) to add a reference to § 1.218(a)(11). This revision to § 70.73(a) addresses the commenter’s concern that VA’s definition of “service animal” in § 1.218(a)(11) should be applied consistently in the context of service animal access, whether the issue is a veteran getting into a VA facility with their service animal, or a veteran getting to the entrance of that VA facility with their service animal via VA transportation.

On my next suggestion, however, I was not successful.  I had argued that the provision regarding transport for training a service dog should also be changed so that such transportation could be provided to a veteran to obtain training for a service animal that met the broader definition of 38 CFR 1.218, rather than the narrower definition of 38 CFR 17.148.  To this argument, the VA responded:

We do not, however, adopt the commenter’s suggestion to revise § 70.71(b)(2) to reference “service animal” as defined in § 1.218(a)(11). As stated earlier in this final rule, § 70.71(b)(2) as proposed would create VTS eligibility for, among other things, transportation related to training a “service dog” that is recognized under § 17.148. If we revised § 70.71(b)(2) to replace the reference to “service dog” in § 17.148 with a reference to “service animal” in § 1.218(a)(11), we would instead create VTS eligibility for transportation related to training a “service animal” that is recognized under § 1.218(a)(11). However, this would conflict with VA’s service dog benefits standards in § 17.148, because § 17.148(c) has specific training requirements that are not present in § 1.218(a)(11). The commenter’s suggested revision to § 70.71(b)(2) would create scenarios where VA could provide VTS transport to support the non-specific training of a “service animal” that is recognized under § 1.218(a)(11), although VA could not recognize that training under § 17.148(c) for the purposes of providing service dog benefits. Such a practice could be interpreted as VA supporting nonspecific training that is not recognized under § 17.148(c), and would erode VA’s training requirements in § 17.148(c). To avoid this conflict between VA standards related to service animal access in § 1.218(a)(11) and VA standards related to service dog benefits in § 17.148, we do not make the revision to § 70.71(b)(2) as suggested by the commenter.

It is true that there are specific training requirements in 38 CFR 17.148, mostly because the organization providing the training has to be a full member of IGDF or ADI, but there are also training requirements under 38 CFR 1.218. The effect of the rule is that the VA will not help veterans who have dogs for mental disabilities, such as PTSD, get to and from trainers, nor will the VA help a veteran get to and from a trainer who is not a full member of IGDF or ADI, even if the trainer is highly experienced and has been recognized by other organizations and even medical facilities as turning out high quality service animals. This is, as I have argued before, tantamount to the VA investing two organizations with a monopoly on service dog training and designating those organizations as gatekeepers for VA funds.  It is to be noted, however, that the VA would not even help a veteran get to and from a full member of IGDF or ADI if the dog was being used solely for a mental disability (probably impossible with IGDF, which concerns guide dogs, but possible with some ADI members).

Transport to Training Facilities Not Generally Transport to VA Facilities

The VA clarifies transport to and from a training facility is not transport to and from a VA facility because the VA does not provide service dog training, stating: 

We additionally clarify that VTS travel to receive training with approved service dogs under § 17.148 would only be approved travel under § 70.72(d). The types of authorized transportation under § 70.72(a)–(c) must be to or from VA or VA-authorized facilities. However, transportation to participate in ‘‘retrieval of, adjustment of, or training concerning . . . a service dog under § 17.148’’ (as stated in § 70.71(b)(2)) would not be to or from a VA or VA-authorized facility because VA does not conduct, facilitate, or pay for service dog training. While VA does recognize specific training under § 17.148(c) for the purpose of paying service dog benefits, the training facilities themselves are not considered VA or VA-authorized facilities. Section 70.72(d) authorizes VTS transportation between locations other than VA or VA-authorized facilities, and such transportation may only be authorized when a VA clinician has determined that such transportation would be needed to promote, preserve, or restore the health of the individual.

The statement that the “VA does not conduct, facilitate or pay for service dog training” is not quite correct.  Yount et al. (2012) describe a service dog training program that was established at “a large Veterans Administration residential treatment center for posttraumatic stress disorder (PTSD)” (Yount, R.A., Olmert, M.D., and Lee, M.R. (2012).  Service Dog Training Program for Treatment of Posttraumatic Stress in Service Members.  The United StatesArmy Medical Department Journal, April-June 2012). In a legislative hearing of the Subcommittee on Health of the House Committee on Veterans’ Affairs on July 15,2015, Rick Yount, Executive Director of the Warrior Canine Connection, gave a list of facilities at which service dog training programs have been established where Wounded Warriors can train service dogs, one of which was the Palo Alto VA Medical Center.  Presumably the authors of the preamble to the current release would argue this situation is atypical, or accidental, and is an exception to the rule.  

VTS Travel Generally for Short Distances

The preamble to the current rule continues:

We also note that in most cases we anticipate that individuals would use the beneficiary travel benefit instead of VTS to obtain a service dog that is recognized in § 17.148, because VTS travel resources cannot be relied upon to travel greater distances that typically necessitate air travel, for instance, and service dog training organizations recognized under § 17.148 are not located in every State.

Under 38 CFR 17.148(d), listing authorized benefits for a service dog under the funding regulation, the VA provides for payments “for travel expenses associated with obtaining a dog” under 38 CFR 148(c)(1), or for obtaining a “replacement service dog.”  As indicated, the veteran must have been prescribed a service dog by a “VA clinical team” to obtain such a travel benefit.  The preamble is thus clarifying that the travel benefit to obtain a dog under 17.148(d)(3) may have to cover long-distance travel, such as airfare, which is not what the VTS program was generally designed to do. 

I had acknowledged in my comment letter that the reference to 38 CFR 17.148 in the travel-for-training regulation had a certain logic if this travel were being considered an aspect of funding a service dog, but the argument presented in the current preamble is somewhat different.  Rather, the VA is saying that travel to obtain a dog is not part of VTS at all, but rather part of 38 CFR 17.148.  Nevertheless, the VA believes that the travel provided in 38 CFR 70.71(b)(2) should conform to the restrictions of 38 CFR 17.148 because otherwise the VA would have an inconsistent policy on payments for purposes of obtaining a qualified service dog and for purposes of continuing its training, and if the policy on the second were different from the first purpose, that first purpose would be undermined.  Thus, the benefit of providing transport to train a dog is not directly part of funding the service dog's acquisition, but is closer to that provision than it is to taking a veteran to and from a facility for the veteran’s own medical needs.  Put another way, 38 CFR 70.71(b)(2) is more about the dog, while 38 CFR 70.73 is more about the veteran.  

This explains why the VA rejected “the commenter’s suggestion to revise § 70.71(b)(2) to reference ‘service animal’ as defined in § 1.218(a)(11).”  The commenter is disappointed. 

So, I guess I was one for two. 

Periodic Training Programs with the Original Training Organization

There is one situation that the rules do not clearly address. Some service dog training organizations ask those they have paired dogs with to return periodically, often annually, for a refresher course and to evaluate whether the user has kept using the dog as was intended by its specialized training.  Although not specifically discussed by the rules, I believe that this would more easily be considered part of obtaining a dog under 38 CFR 17.148, rather than part of training under the short-term travel coverage conceived of in 38 CFR 70.71(b)(2). Such refresher courses may be a condition of obtaining the dog, particularly from organizations that keep ownership under a formal agreement with the user, who is licensed to use the dog but does not own it. When the issue presents itself, hopefully the VA will define its policy on this question. 

Conclusion

To sum up, a veteran can get a service dog under the broad definition of the Department of Justice into a van to go to a VA facility for an appointment, but if he or she wants to travel to obtain a service dog, or take it to a location for training, there will be no van or other transportation provided unless the dog fits within the narrower definition provided under the VA’s service dog funding regulation. 

The VA’s reluctance to provide funding for service dogs for PTSD and other mental disabilities is at least in part economic. When proposing the service dog funding rule in 2011, the VA indicated that it expected to fund only about 100 dogs each year, most of which would be guide dogs for veterans blinded in combat.  If the VA had to meet the demand for service dogs for veterans with PTSD and other mental disabilities, thousands and thousands of dogs could qualify and the agency’s budget would need a significant boost, something Congress has not been in the mood for for much of President Obama's administration despite all the rhetoric about improving the VA. 

It must be hoped that more programs, such as those established by Rick Yount, will sooner rather than later change attitudes in the upper echelons of the VA.  

Thanks to Leigh Anne Novak for comments. Thanks to Bart Sherwood of Tadsaw for raising the question of how training organization requirements on annual evaluations should be categorized under the two travel provisions.  

Thursday, March 3, 2016

Dying for Better Warning Labels: The Short and Lonely Life of the Laboratory Research Dog

In Kazuo Ishiguro’s 2005 novel, Never Let Me Go (made into a movie in 2010), children at an isolated English boarding school do not have parents but rather guardians who continually encourage them to remain healthy. Three students learn that this emphasis on health is not for their own good, but because they have a special function. They are clones created for only one purpose, to provide healthy organs for members of the society outside the school who need to replace parts of their bodies. After the organs of these clones have been harvested, they will die, a step referred to as completion. The school and the students come from a novelist’s imagination, but for laboratory animals such a world is not fictional. 

As Lynda Birke wrote in a 2012 article in Body & Society, the “edifice of what we call scientific, medical, knowledge is built upon animal corpses.” Dogs have been specifically bred for laboratory experimentation as commercial products for over a hundred years (Asdal 2008), but this segment of the canine breeding industry, unlike all other dog breeders, strives to remain as inconspicuous to the general public as possible. The scientists who perform research on animals also avoid describing how those animals were used in their experiments, perhaps 45% of the time do not indicate how the animals were killed, and frequently do not even acknowledge that the animals in fact died (Smith et al. 2005). One seminal analysis of animal research papers found that of 98 papers describing “procedures which must have involved the death of the animals involved,” only 44 of the papers mentioned that the animals in the experiments had died (Smith et al. 1997).

Killing Snails and Slugs

Laboratory Research Dog (courtesy Peta)
When I go through the Federal Register every morning, I look for certain topics, including terrorism financing and anti-money laundering regulation, as well as references to dogs, wolves, and other terms relevant to interests of mine.  Many, perhaps most, of the federal government releases that refer to dogs are of only passing interest, including items about drugs that are being approved for veterinary use with dogs, food additives that are being found safe for use in dog food, or sometimes not safe, and occasionally references to pesticides and other chemicals that may put dogs at risk if ingested.  Such references are usually brief, often contained only in tables that summarize research findings, and rarely draw my attention.  These findings sometimes mean that dogs were used in experiments, that is, that dogs were laboratory animals being given food or undergoing procedures to see what the effects of administering a chemical might be. 

Somewhere in the back of my mind, when I encounter such references, is an image of a dog in a cage in a sterile room, looking at other dogs in cages, none ever having any name beyond  numbers on their cages, perhaps allowed a brief period of exercise each day in a small room with a concrete floor and windows too high to look out, perhaps not even allowed to play with other dogs if companionship might violate somebody’s requirements for the research being conducted on them, often maimed or killed in the interest of science and human welfare, autopsied with organs weighed and then biopsied to establish variance from a control population (which may also be killed, but here it is sometimes possible to use legacy statistics from other laboratories), and finally disposed of as laboratory waste rather than given any dignity in a burial or individual cremation.    

Recently I saw a document that gave more information than is usually available, more than I really wanted to know because it forced me think about what the animals’ lives were like, something I try not to think about, until I can’t avoid it.  The Federal Register for March 4, 2015, contained a release of the Environmental Protection Agency that provided tolerances for residues of metaldehyde in parts per million (ppm) on certain commodities including ginseng (0.25 ppm), pea and bean (succulent shelled, subgroup 6B, 0.20 ppm), vegetable, foliage of legume (except soybean, 1.5 ppm), clover (forage and hay, each 0.60 ppm).  Metaldehyde is a molluscicide that is used by growers and gardeners to kill snails and slugs and the EPA was doing some fine tuning to its regulation (40 CFR 180.522) on how much can be present in certain food items for human and animal consumption, such as for cattle that are slaughtered for meat markets.

Metaldehyde (National Center for Biotechnology Information)
This Federal Register release was almost certainly of no interest to anyone outside of a relatively small set of farming and agricultural production facilities, and of only slightly more interest to manufacturers of metaldehydeKnown more technically as 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, metaldehyde is sold, according to the National Center for Biotechnology Information, under at least 65 trade names, including Antimilice, Ariotox, Blitzem (in Australia), Cekumeta, Deadline, Defender (in Australia), Halizan, Limatox, Limeol, Meta, Metason, Mifaslug, Namekil, Slug Fest Colloidel 25, and Slugit. A UC Davis website concerning pests in gardens and landscapes states that this is the most common snail and slug bait product available, but adds the following warning:

[M]etaldehyde baits are particularly poisonous to dogs and cats, and the pelleted form is especially attractive to dogs. Don’t use metaldehyde snail baits where children and pets could encounter them. Metaldehyde baits containing 4% active ingredient are more effective than those containing only 2%; however, they also are more toxic to dogs and wildlife. Avoid getting metaldehyde bait on plants, especially vegetables.

The entry in the Federal Register came about because a research group at Rutgers University, the IR-4 Project, had recommended in 2013 that tolerance levels for metaldehyde on certain crops be established, and recommended changes to tolerance levels previously set by the EPA for certain other crops.  This is a case where a university research program was filling in certain gaps in industrial research that would not be cost-effective for chemical manufacturers to conduct.  The crops with new tolerance levels included ginseng, certain peas, beans, and tomatoes, forage clover and hay

The EPA’s release effectively finalized some of the proposals previously made by IR-4.

Toxicological Profile

The March 4 Federal Register release contained the following sentences in the description of the toxicological profile of metaldehyde:

The principal toxic effects for metaldehyde are clinical signs of neurotoxicity, as well as changes in the liver and testes/prostate following repeated oral dosing. The dog is the most sensitive species for neurotoxic effects. Nervous system effects observed in the subchronic and chronic oral toxicity studies include: Ataxia and tremors; twitching; salivation; emesis; rapid respiration in dogs and maternal rats; and limb paralysis, spinal cord necrosis, and hemorrhage in maternal rats. Liver effects include increased liver weight, increased incidence of liver lesions (hepatocellular necrosis, hepatocellular hypertrophy and inflammation), and an increased incidence of hepatocellular adenomas in female rats and in both sexes of mice. In dogs, atrophy of the testes and prostate was observed following subchronic and chronic exposure.

Summary of Toxicological Doses and Endpoints for Metaldehyde Use in Human Health Risk Assessment (EPA 2013)
Things like liver weights and prostate size could not have been precisely determined without killing the dogs and extracting their organs.  This got me wondering where the information on metaldehyde’s effects came from, but the EPA gave no citation to support its short description.  In 2013, however, in an earlier release setting limits on residues for metaldehyde on various commodities (78 Fed. Reg. 70864, November 27, 2013), the EPA again did not name the original studies on toxicity of metaldehyde, but did include a table of “toxicological doses and endpoints for metaldehyde for use in human health risk assessment.”  Note that although the table is intended to provide a human health risk assessment, the recommendations for limits are based, as indicated in the fourth column, on a “chronic dog oral toxicity study.”  Some acronyms need defining: 

NOAEL = no-observed-adverse-effect-level
LOAEL = lowest-observed-adverse-effect-level
LOC = level of concern
MOE = margin of exposure
UF = uncertainty factor
UFA = uncertainty factor extrapolated from the study on dogs to humans because humans, of course, are not available to be put in cages and administered poisons to undertake such tests.  UFH = potential variation among humans, i.e., once the dosage limit is extrapolated from dogs to humans, how much variation in that estimate there might be in the human population. 
RID = reference dogs

The 2013 release added some detail to the information about the dog studies on which the various limits for metaldehyde were determined, stating that clinical “signs (ataxia, tremors, twitching, salivation) in the chronic dog study, which occurred within the first week of explosure and persisted through week 19 (other signs included lateral position, reduced mobility, convulsions, and vocalization in one female, and agitation in another).” Thus, some of the dogs had been given doses of metaldehyde over at least 19 weeks, almost five months, and one female dog protested her unfair lot by barking while another may have begun to lose her mind. 

Metaldehyde Dog Experiments

The U.S. Environmental Protection Agency publishes a manual, Recognition and Management of Pesticide Poisonings (Roberts and Reigart 2013), which gives sources that were not provided by the agency in its Federal Register releases.  Prior to 1986 there had only been two metaldehyde pharmacology studies, both of which used mice, that had found (1) a significant decrease in the brain concentration of γ-aminobutyric acid, (2) and increase in monoamine oxidase activity, and (3) a significant decrease in brain levals of noradrenaline, 5-hydroxytryptamine, and 5-hydroxyindoleacetic acid.  The LD50 for rats (the dosage level that would kill 50% of a population of test animals) was determined to be between 420 and 690 mg/kg (milligrams per kilogram of body weight). 

Then in 1986, Booze and Oehme used dogs instead of rats. They chose 15 “healthy mixed-breed male dogs” weighing between 8 and 19 kilograms (18 and 42 pounds), from six months to two years old.  Using young dogs is preferred so that measures such as organ weight and damage can largely exclude effects of aging. The animals came from Kansas State University’s Animal Resources Facility (renamed the Comparative Medicine Group in 2009).  Dogs were “housed individually in large metabolism cages, two to a room.”  (Metabolism, or metabolic cages, have themselves been the subject of research.  Sabchuk et al. (2012) found that “dogs kept in metabolic cages eliminate drier feces and spend more time inactive than those kept in kennels.” The dogs in this study also slept more in cages than kennels.) 

The dogs were given dry dog food and free access to water.  Eight dogs were orally dosed with 600 mg of metaldehyde (or 600 mg of acetaldehyde) per kg of body weight. An arterial catheter was surgically placed in the left carotid artery under anesthesia, “and brought to the surface on the left side of the neck, where it was kept in place by a Velcro-fastened enclosure.”  Dogs were dosed at 8 a.m., with blood samples obtained after 15 minutes, 45 minutes, and then hourly for 12 hours after the dose was administered.  Urine samples were collected in a stainless steel pan under the cage until the drugs were no longer detected.

Tremors were graded into four categories: none, slight, moderate, severe; respiration as normal, panting, or labored; salivation as normal, increased, or thick; coordination as normal or abnormal; hyperesthesia (increased sensitivity to stimulation) as absent or present; vomiting as absent or present; and diarrhea as absent or present.  One dog had tonic-clinic convulsions, profuse and thick salivation, hyperesthesia, and ataxia, and died 4.5 hours after dosing.  The remaining dogs appeared normal a day after dosing.  The clinical signs occurred in the following numbers of the eight dogs dosed with metaldehyde:

Slight tremors
8
Moderate tremors
3
Severe tremors
2
Ataxia
4
Hyperesthesia
4
Increased salivation
2
Death
1

The authors concluded that the LD50 of metaldehyde for dogs is greater than 600 milligrams per kilogram of the dog’s body weight, refining a previous estimate of the same authors (1985), based on poisoning cases, of between 100 and 1,000 mg/kg of body weight.

More recent dog research on metaldehyde was conducted in England.  A 1996 British government report by the Department of Environment, Food and Rural Affairs, Pesticides Safety Directorate, describes an unpublished German study (Neumann 1980) using smaller doses of metaldehyde (20, 60, or 90 mg/kg body weight/day) where there were “no clinical or ophthalmological signs of toxicity and no deaths” over six months of dosing.  The research also found that “clinical chemistry, haematology and urinalysis were unaffected by treatment.”  All of which makes the study sound relatively harmless to the dogs except for the observation that “post-mortem organ weights were not affected by the treatment.”  The animals were killed at the end of the study to verify internal effects resulting from the administration of the pesticide.   The NOEL level (no observed effect level) for metaldehyde, from this study was determined to be 20 mg/kg body weight/ day.  It is on the basis of this finding that some of the minimum levels of metaldehyde in agricultural products were established. 

Laboratory Animal Welfare Act

The fate of laboratory dogs is all quite legal, of course, though Congress has taken occasional interest in laboratory animals, often because of stories disturbing to the public about escaped pets that ended up as subjects in research facilities (National Research Council 2009).  This generally happens in states that permit pounds to sell pets, usually after a short period, to research facilities as an alternative to euthanizing them.  (The connections between pounds and research facilities could itself be an extensive study.) 

Number of Animals Covered by AWA Used in Research 2001-2007 (NRC 2009)
The number of animals over a seven-year period from 2001 to 2007 that were used as research subjects is indicated in a table provided in the NRC’s 2009 report, taking statistics from an earlier USDA report.  Fortunately, sporadic statistics for later years indicate that the number of dogs used in experiments continues to decline.   

Section 13 of the Animal Welfare Act of 1966 (PL 89-544, August 24, 1966) provides that the Secretary of Agriculture is to “establish and promulgate standards to govern the humane handling, care, treatment, and transportation of animals by dealers and research facilities.”  Standards are to include requirements on “housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperature, separation by species, and adequate veterinary care.” 

Under 9 CFR 3.7, which concerns the humane handling, care, treatment, and transportation of dogs and cats by “dealers, exhibitors, and research facilities,” specifies that if “a dog is housed, held, or maintained at a facility without sensory contact with another dog, it must be provided with positive physical contact with humans at least daily.” Thus, the research facility has a choice between giving dogs contact with each other or contact with people. 

The National Research Council of the National Academies publishes a Guide for the Care and Use of Laboratory Animals (8th ed. 2011), which accepts that dogs, cats, rabbits, and other animals benefit from “positive human interaction.”  Dogs are singled out as regards human attention: “Dogs can be given additional opportunities for activity by being walked on a leash, having access to a run, or being moved into areas for social contact, play, or exploration.” 

Cage Height Table (NRC 2011)
Dogs have an advantage over most experimental species, according to the NRC’s Guide, in that they can be “trained, through use of positive reinforcement techniques, to cooperate with research procedures or remain immobile for brief periods.”   (See also Meunier 2006.) Dogs, because they are “noisy animals,” should be housed away from where research is being done.  When possible, they should be given “manipulable toys.” However, their noisiness, according to the Guide, makes them useful in research where pain thresholds are being measured.  (See, e.g., Devitt et al. 2005; Holton et al. 1998.)

Dogs have the disadvantage of needing more space in cages that cats and rabbits, so the fact that dogs are used less extensively than some other species is not wholly due to the reluctance of researchers to use animals that their children might think of as pets.  Cage size also determines why certain breeds, such as beagles, are more common in research settings (Andersen 1970). 

Various organization, including Peta and the Humane Society, have launched campaigns to improve the lot of laboratory animals, in some cases attempting to force the USDA’s Animal & Plant Inspection Service to investigate complaints about how some laboratories care for animals on which they are experimenting.  Of course, this goes only to the more superficial trappings of what happens to these animals, insuring that cages are cleaned, vermin are removed from the environment, wounds are treated, etc.  The fact that there is often a horror to the overall fate of these animals is not something that the present law or rules will do anything to alleviate.

Sociological Research on Researchers Who Use Dogs in Lethal Experiments

Lynda Birke of the University of Chester, already quoted, must be read if one wants to delve into the nether world of the use of animals in biomedical research. In a 2012 paper she gets as close to the core of anyone I have read as to why we find the use of animals in experiments to be acceptable:

We inherit a long history of cultural beliefs that animals, unlike humans, do not have souls/consciousness, and that other species cannot perceive pain or perceive it less than we do. Thus we can justify producing sick animals as models, and we can accept probing into their bodies in the search for understanding what bodies do. Indeed, it is precisely because of that history of human exceptionalism that probing into animals’ living bodies in pursuit of knowledge becomes acceptable. Animal bodies, whether alive or dead, thus stand in for human ones, representing our diseases – so much so, that lab animals can be said to represent our salvation from the terror of our own mortality.

Arnold Arluke of Northeastern University, who has also studied how researchers relate to laboratory animals and is a sometime collaborator with Birke, notes (Arluke 1988) that researchers often prefer to avoid eye contact with the dogs on which they experiment. 

A laboratory that transported conscious dogs kept them in a private hallway outside the laboratory until moments before an experiment was to get under way. Another laboratory, which had no such hallway, would turn the dogs' cages to face a wall and sometimes drape surgical sheets over the cages as well.

Laboratory Research Beagle (courtesy Peta)
Arluke reports that laboratory technicians often prefer purpose-bred dogs—dogs that have never known anything but cages in breeding facilities and experimental environments—because these dogs are less likely to behave like pets, to extend a paw for contact, to whine, to sit on command, in other words to behave like an animal that should be cared for.  Shapiro (1989) concludes that researchers attempt to view an animal they are dealing with not as an individual, not even as a member of a species, but rather as an organic process, a biological organism, a physiological system, or, as Birke (2012) says, “a specific local accomplishment of the organization of laboratories and their associated infrastructure.”  She elaborates:

Once lab animals are thus perceived, it becomes more difficult to see them in the same way as ‘naturalistic’ animals elsewhere. They are different: they would not exist were it not for the demands of experimental science. As such, we can learn to justify intrusion into their bodies for a putative greater good, and we can learn (if somewhat ambivalently) to see their bodies as sums of parts.

As someone who once did research to determine if intertidal crabs could orient toward the nearest shore by the position of the sun or, at night, the moon, I am aware of how easily the objective of the research, and its importance to the advancement of science (or at least to one’s career), can become an excuse for ignoring the effects of the experiments on the animal subjects that are producing the raw data.  Yet it sometimes moves to the macabre, and must make us question our humanity, as with a technician described by Arluke (1988) who amused his colleagues by addressing a dog he was about to anesthetize by saying to it, “Okay Fido, let’s boogie!”

Birke (2012) also notes that because of an animal’s species-specific biology, its ability to stand in for humans and provide relevant conclusions may often be questionable.  This, of course, opens up yet another issue that could fill volumes. 

Conclusion

If it could be shown that some research directed towards human health requires validation through experiments on medium-sized mammals (National Research Council 2009 accepts that this is the case), and admitting that some core element of our humanity requires that we not use members of our own species as research subjects, then insisting that dogs not be used while pigs or rabbits can be used seems arbitrary, as if we must heed the advice of the Chick-fil-A cows and EAT MOR CHIKIN.  Birke et al. (2006) cite one scientist who did not have a problem experimenting on certain species, but could not see working with dogs, cats, or monkeys. 

Yet perhaps there should be a social contract in the human-canine relationship, as if the fact their varied and complex assistance to us throughout the long history of their domestication creates an obligation on us to excuse them from the more horrific burdens of domesticated status.  Certainly, as I shall argue elsewhere in much greater detail, the law of domestication as it applies to dogs is often more nuanced than the law applied to our relationship with other domesticates, though this does not prove that we move onto moral high ground if we insist that dogs not be used in painful and fatal experiments yet accept that pigs can be. 

Scientists should indicate in published research when and how animals are used, and when they are killed for experimental purposes.  Federal and state agencies relying on such research for setting standards should at least refer to the research, in the Federal Register or elsewhere, when indicating the justification for a standard being set. Steps should be taken to lift the veil of secrecy that has been built to protect the industry that produces animals for research.  Efforts by various groups, such as the Humane Society, to find out about conditions of laboratory animals often require filing of Freedom of Information Act requests with the USDA and other inspection services.  Such reports should be publicly available, without advocates having to figure out where information and statistics may have been hidden by government bureaucracies to avoid the possibility of public outrage.  

Finally, although efforts should continue to be made to regulate the transfer of animals from pounds and general dealer markets into research markets, the use of purpose-bred dogs by laboratories should not create a façade that allows us to ignore the horror faced by such dogs just because they were never pets or around other dogs that were to become pets. Purpose-bred dogs are as horrifying as purpose-bred people. Like the children in Ishiguro’s novel, such dogs have only one purpose, and often one fate, and many, in the few short years they are allowed to live, will never be able to stand tall enough to look out to any other world. We cannot absolve ourselves, even if we can justify our research.   

This blog was written by John Ensminger and L.E. Papet.

Sources:
  1. Andersen, A.C. (1970).  The Beagle as an Experimental Dog.  Ames: Iowa State University Press.
  2. Arluke, A.B. (1988). Sacrificial Symbolism in Animal Experimentation: Object or Pet? Anthrozoos, 2(2), 98-116 (discussing how researchers avoid the term “kill” when referring to what happens to laboratory animals, preferring “sacrifice,” “sack,” “terminate,” or just putting an X on a form.  “Sacrifice” is no longer used in scientific contexts because of a desire to avoid any religious connotations.
  3. Asdal, K. (2008).  Subjected to Parliament: The Laboratory Experimental Medicine and the Animal Body. Social Studies of Science, 38, 899-917.
  4. Austrian Agency for Health and Food Safety (AGES) (2012).  CLH Report for Metaldehyde.
  5. Barber, A.L.A., Randi, D., Muller, C.A., and Huber, L. (2016). The Processing of Human Emotional Faces by Pet and Lab Dogs: Evidence for Lateralization and Experience Effects.  PLoS/One, DOI:10.1371/journal.pone.0152393 (April 13, 2016) (finding that lab dogs pay less attention to the mouths of humans, perhaps because they are not anticipating verbal commands as pet dogs do; pet dogs also look at faces more quickly perhaps because the lab dogs here "live in packs and are therefore surrounded by other dogs but not humans, [so] human faces are not salient enough to elicit a fast response.").
  6. Bates, N. S., Sutton, N. M., & Campbell, A. (2012). Suspected Metaldehyde Slug Bait Poisoning in Dogs: a Retrospective Analysis of Cases Reported to the Veterinary Poisons Information Service. Veterinary Record: Journal of the British Veterinary Association, 171(13), 324 (“A retrospective analysis of telephone enquiries to the Veterinary Poisons Information Service found 772 cases with follow-up concerning suspected metaldehyde slug bait ingestion in dogs between 1985 and 2010. Half the enquiries occurred in the summer months. The amount and strength of the slug bait ingested was rarely known. In 56, cases the quantity consumed was estimated and was on average 229.6 grams of bait. Clinical signs developed in 77.3 per cent of dogs; common signs were convulsions, hypersalivation, twitching, hyperaesthesia, tremor, vomiting, hyperthermia and ataxia. Only 4.6 per cent of dogs developed hepatic changes, and only one developed renal impairment. The average time to onset of signs was 2.9 hours post-ingestion, with 50.3 per cent of dogs developing effects within one hour. Increased muscle activity (twitching, convulsions) lasted on average 15.2 hours. Recovery time was reported in 61 cases and occurred on average at 39.3 hours. Common treatments were gut decontamination, anticonvulsants, anaesthetics and intravenous fluids. Of the dogs that were treated with sedatives, 45.8 per cent required more than one sedative or anaesthetic agent. Methocarbamol was rarely used, probably due to unavailability. The outcome was reported in 762 dogs; 21.7 per cent remained asymptomatic, 61.7 per cent recovered and 16 per cent of dogs died or were euthanased. Where known (only six cases), the fatal dose of bait ranged from 4.2 to 26.7 g/kg (average 11.8 g/kg).”).
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