Wednesday, September 28, 2016

California Supreme Court Brings Flawed Station Identification Procedure Back from Brink of Deserved Oblivion

On May 13, 2001, Geraldine Myers disappeared from her home in Riverside, California.  Her car was found in Las Vegas, Nevada, but her body has never been found.  Myers was 82 years old.  In the early hours of June 22, 2001, Myrna Mason, an 84-year-old woman living in the same neighborhood, was raped in her home.  Bailey Lamar Jackson was arrested the day after the rape, and evidence implicating Jackson in Myers’ earlier disappearance was developed during the investigation of the rape of Mason.  California v. Jackson, 1 Cal.5th 269 (2016).

There were many strands of evidence regarding the murder of Geraldine Myers and the rape of Myrna Mason, and the connection between the two crimes—the evidence that there was a single perpetrator—was only partially made by the use of trailing dogs.  That aspect of the case, however, will be the sole focus of this analysis.  Whether a conviction would have occurred had the trailing evidence been excluded, as the authors believe much of it should have been, is doubtful.  The Supreme Court of California, unlike some lower California courts, did not state anything to the effect that, even if the evidence would properly have been excluded, its admission was harmless error.  The judicial mantra of harmless error has been repeatedly invoked by courts not wishing to face the fact that scent identification evidence, particularly in the U.S., is often highly flawed, as it was in Jackson.  (See, e.g., People v. Mitchell, 110 Cal.App.4th 772, 2 Cal.Rptr.3d 49 (2003); People v. Schoppe-Rico, 140 Cal.App.4th 1370 (2006).)

The case is notable for the number of canine procedures used, with the California Supreme Court describing seven procedures involving at least six dogs. 

The Riverside Sheriff’s Department Canine Team

Riverside Deputy Sheriff Coby Webb began training as a bloodhound handler in 1998 and obtained Maggie, her second police dog, in 1999.  Maggie completed 20 hours of training at a Southern California Bloodhound Handler Coalition Seminar in July 1999 when she was four months old.  She also attended the Colorado Canine Training Academy in September 2000, where she was certified to trail human scent.  In April 2001, Webb and Maggie completed 40 hours of training through the Law Enforcement Bloodhound Association.  They were also certified by the National Police Bloodhound Association. 

Maggie testified that she continued to train Maggie for 10 to 15 hours a week, following trails laid by other officers or volunteers. Since many departments limit paid training time to four hours a week, either the Riverside Sheriff’s Department has a very liberal canine training policy or Maggie was training outside of normal hours.  This should have been a matter of inquiry for defense counsel to make sure that it does not include grooming and other non-training-related activities.  Maggie was given “negative trails” in which the dog was scented to an object by someone who had not been in the training area.  In such cases, Maggie was rewarded for not trailing.  Maggie was also trained with double-blind trails, where neither Webb nor the evaluator knew the correct path (and where, presumably, anyone who did know the trail was not visible to the dog while it worked).

The Trail from Mason’s House

Deputy Sheriff Webb brought Maggie Mae to Mason’s house the morning of June 22, the day of the rape.  She also brought a scent transfer unit and gathered scent from a shoe print in freshly raked dirt outside Mason’s home.  She presented the scent pad produced by this process to Maggie, who trailed across the street where a garbage can was found to contain Mason’s purse.  It is not specifically stated in the opinion that the purse was found in the garbage can by the dog handler or someone with her, though the fact that the dog was brought back to this point after it became confused may indicate this was the last point that Webb was sure the dog was trailing the scent obtained from the shoe print.  Subsequent to reaching the garbage can, Maggie led Webb to the porch of Richard Shrader, a neighbor with whom the defendant, Jackson, lifted weights, then to the back yard of Billie Harris, another woman living in the neighborhood.  Harris’s daughter, Angelina Fortson, was living in the house with Jackson, who was her boyfriend.  In the back yard, Maggie “seemed confused and appeared to have lost the trail.” 

During testimony, Webb said that the dog’s confusion in Harris's back yard may have been the result of “pooling,” which she described as occurring “when many trails of the target scent overlap at a single location,” which “can occur at the residence of the person who left the scent the dog is trailing.”  Because of the dog’s confusion, Webb brought the dog back to the garbage can to start over.   The choice of the garbage can is somewhat troubling because the standard practice, when a dog loses a track, is to go back only as far as the closest point at which the dog was known to be trailing or tracking. With the handler standing firm at this point, the dog is allowed to search at full lead length while attempting to re-acquire the track. Alternatively, a sweeping motion can be used to guide the dog into an oblique angle (300-450) intercept in the direction of travel of the last known track point. Both of these methods are sometimes referred to as “casting.”  Defense counsel should have inquired as to why this was not done, say at Schrader’s porch or just prior to entering the back yard of Billie Harris.  

This time, Maggie “trailed down the street past the Harris residence and then appeared to have lost the scent.”  No explanation was provided in the Supreme Court’s opinion as to why the dog followed a new and apparently unproductive trail from the garbage can where the purse was found. The issue should have been of particular concern to defense counsel.

Station Identification

Later the same day Webb and Maggie went to the Spruce Street police station, where Jackson was being detained as a result of other evidence concerning the rape.  Webb was asked whether Maggie could eliminate a suspect who had been in the lobby and was now somewhere else inside the station, but Webb was not told where the suspect was or what path he had taken.  “In the lobby, Webb presented Maggie with the scent pad collected from the shoe print outside Mason’s house.” Maggie first trailed to one interview room that Jackson was not in, and then to the interview room where he was being held.  It was not stated whether Jackson had been in the first interview room or not.  In the second interview room, Maggie stopped in front of Jackson but, according to the court’s summary of Webb’s testimony, “did not ‘commit herself to jump up on’ Jackson….”  Webb testified that when Maggie “gets confused, she will just stop, which tells me she did not know which subject was the possible suspect.”

Webb apparently vacillated on the significance of Maggie not jumping on Jackson.  According to the California Supreme Court:

Webb testified that during training Maggie had been taught to indicate that she had found the person she was trailing by jumping up on them. Webb later testified that it was not necessary for Maggie to jump up on someone to indicate that she had finished trailing. Instead, when Maggie would stop trailing and stand still in front of someone, it was enough for Webb to question that individual to see if “that’s the person we are looking for.”

Webb also testified that the air conditioning system in the Spruce Street station may have been confusing the dog because a target “scent is going all through the air-conditioning vents.”  Webb “had to pull Maggie out of the room, which further suggested to Webb that Maggie had located the person she was trailing.”  Since the dog did not jump up on the suspect, there was no trained final response and the authors believe the evidence of the dog’s interest in either the first or the second interview room was insufficient to justify its admission as evidence of Jackson’s identity as the perpetrator, and was sufficiently speculative and prejudicial as to be inadmissible.

Jackson’s Description of Throwing a Woman from a Car

During an interview regarding the rape, Jackson described a memory of having thrown a woman from his car.  Police began to suspect that Jackson, who stated that he took Haldol, an antipsychotic medication, and Cogentin, which is used to reduce the side effects of certain antipsychotic drugs such as Haldol, was mixing up memories of the events of Myers’ disappearance with those of Mason’s rape.  Jackson thought he could find the place where he had thrown a woman from his car, but a search of the area with a trained dog did not result in any body being found.  It is not clear if this was a cadaver dog or a tracking or suspect apprehension dog scented to one of the scent pads produced by the scent transfer unit. In any case, no body or evidence of a body was found and as already indicated, Myers’ body has not yet been found.  

Second Station Identification

A second station identification was conducted on June 25, 2001, three days after the first, at a different location, the Orange Street station.  This procedure is described as follows:

To lay the trail, Jackson was led through the station by Barnes and Johnson from the entrance, around at least two corners, and into a men’s locker room. The detectives sat Jackson on a bench, closed the door, and stayed in the room with him. They were dressed in casual clothing, while Jackson was wearing an orange jail jumpsuit.

Defense counsel should have explored whether Barnes and Johnson could have themselves have been laying scent from the crime scenes, having sat beside Jackson in a cruiser (as they likely were on June 22), or having been in contact with objects that Jackson himself may have come in contact with.  The continued presence of the officers in the room meant the procedure was not double-blind.Jackson was also the only black man in the locker room and wore handcuffs in addition to the orange jumpsuit. 

As to Webb’s preparation for the procedure, the Court states the following:

Webb testified that she asked the detectives: “'Can I please have three turns to make sure Maggie is committed to trailing, and I need to have it where there’s no air conditioner on and I don’t know where the subject is.'” Although she did not know the path that Jackson took through the basement, she did need to know “where the subject had walked into the building.... to match the trail with the scent item or not match, I needed to point [Maggie] on a trail. So I just needed to know where the person first walked into the building.”

It is not clear why Webb could not have scented the dog outside the building, walked her to each entrance, and seen where the scent was picked up by the dog, which would have verified the dog's willingness to trail outdoors.  In any case, on the sidewalk outside the station Webb presented Maggie with a crumpled manila envelope that had been found on Myers’ bed, inside of which a sterile gauze pad had been placed. The first trailing on June 22 had involved scenting Maggie to odor taken from a footprint with a scent transfer unit. It was not explained if the footprint had been deemed made by someone other than a perpetrator, perhaps because of the lack of clear identification during the first station procedure.  The fact that a second station identification was conducted after a first was unsuccessful may also indicate that, at this stage of the investigation, the sheriff's office was concerned that not enough non-canine evidence might be found to convict Jackson or force a plea deal. 

It is not clear why the gauze pad was placed inside the envelope since crinkling up an envelope as trash will leave substantially more odor of the person doing the crinkling on the outside of the envelope than the inside.  It should have also been investigated whether Barnes, Johnson, or others had touched the envelope.  The envelope had been sprayed with ninhydrin to test for fingerprints before it had been placed in a Ziploc bag with the gauze pad.This would not have been a problem with the footprint scent, and resulted in efforts to discount the effects of ninhydrin on the dog's ability to take a scent from the envelope, as will be described further below. 

It took Maggie 10 to 15 minutes to trail from the starting point [at one entrance], around both corners that Jackson had turned, to the locker room. When Webb opened the locker room door, Maggie walked past the detectives, walked down the row where Jackson was seated, and put her paws on the bench and her head next to his chest. Webb testified that this indicated that Jackson’s scent was on the manila envelope.

At a later point in the opinion, the Court's description of these events differs somewhat, saying that "Webb lost sight of Maggie when the dog turned the corner to walk down Jackson's row."  Also, instead of saying that Maggie's paws were on the bench and her head next to Jackson's chest, the court in its second description says that when Webb reached the row where Jackson was seated, "she saw Maggie jump into Jackson's lap."  The inconsistency of these descriptions was not explained.
The defense objected that “the presence of the two detectives in the locker room transformed the Orange Street trailing into a hybrid of a trailing and a scent lineup,” using the terminology employed by Professor Andrew Taslitz in his famous Hastings Law Review Article, “Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup.”  The California Supreme Court rejected the argument:

Although Barnes testified that there were communications personnel in another room in the basement while Maggie was trailing, Jackson does not argue that their presence transformed the trail into a scent lineup, nor does he argue that as a general matter dog trailing can only be reliably conducted in areas where other people are not present. Crucially, at no point was Maggie presented with a line of multiple people or objects and asked to distinguish among them; instead, the detectives and Jackson were waiting in different parts of the locker room. Webb testified that she could not see Jackson when she followed Maggie past the detectives and did not see him until she turned the corner to watch Maggie jump into his lap.

This defective logic misses the fact that there is an entire history of distinguishing between tracking or trailing and interacting with individuals who might be found at the end of the trail, a logic that has infused the scientific development of scent lineups and which more astute courts have seen as meaning that a dog’s interaction with an individual at the end of a trail can be influenced by factors other than an identity of scent between the individual at that point and the odor with which the trailing procedure began.  (See Tadeusz Jezierski, Scent Lineups: Variables in Procedures and Statistical Verification, chapter 19 in Canine Olfaction Science and Law.)  

The Court was apparently not apprised of research, some of which has been discussed here previously, indicating that dogs that follow trails with high statistical success have lower success rates at the end of these trails when they are presented with a choice between several individuals and are expected to identify the individual who left the trail that they had correctly followed.  That one individual in a room is wearing a jumpsuit and is in handcuffs is an obvious invitation to cueing by the handler, which does not need to be a conscious manipulation of the leash.  (See Ensminger and Papet, Cueing and Probable Cause, article online at Michigan State University College of Law’s Animal Legal & Historical Center, as well as Police and Military Dogs, Chapter 6 at 96.)

Webb was asked—whether on direct or cross examination is not stated—whether the first trailing at the Spruce Street station may have influenced the result at the Orange Street station.  The Court quotes her reply as follows:

“No. We run numerous trails. An example, like this month I believe I’m up to 14 callouts. So I change scents, I mean, almost on a daily basis. And she—I’ve never seen her able to remember something—a trail of somebody else. I’ve never, ever seen that.”

The defense expert, Dr. Lisa Harvey, whose testimony will be discussed in more detail below, also testified that dogs trained to trail human scent will not follow a scent simply because they have been asked to follow the scent on past trails. Trainers of tracking and trailing dogs, however, when using a prior scent for testing a dog's ability to avoid cross-tracks of other scents often use prior odors as a proof.  Many dogs, particularly newer dogs, will follow a previously encountered scent rather than maintaining focus on the correct trail.

Ninhydrin

The fact that the envelope used to scent the dog at the Orange Street station procedure had been sprayed with ninhydrin raised the possibility that a dog might not be able to reliably follow a trail upon being scented on an item that had been so treated.  This possibility was subjected to field experiments by two experts for the prosecution, Maryland State Trooper Douglas Lowry and Dr. Lisa Harvey.  Lowry used one dog for his experiment, while Harvey used three.  Dr. Harvey has conducted some of the most important trailing research in the last twenty years.  Both experts concluded that the presence of ninhydrin on an envelope would not significantly alter a dog’s ability to detect a human’s scent on the envelope and follow a trail of an individual who had put the scent on the envelope.  

Apparently no research was cited regarding the effect of ninhydrin as a masking agent for odor detectible by dogs, so the need was felt to conduct field experiments to provide at least tentative (though unrefereed) evidence that ninhydrin would not interfere with a dog’s ability to trail.  The results are not surprising.  Waggoner et al. (1998 SPIE Proceedings) notes that “although the detection performance of dogs is susceptible to being perturbed by the presence of an extraneous odor, it takes a large or even very large amount of this odor in relation to the amount of target odor for this effect to be realized. The extent of this effect depends on the nature of the substances.”

Pre-Trial Motion for Kelly Hearing on Canine Evidence

Before trial, the defense moved for a hearing on the admissibility of the canine evidence under California v. Kelly, 17 Cal.3d 24, 549 P.2d 1240 (1976), which defines California’s Frye requirement with regard to scientific evidence.  Kelly requires that (1) the scientific technique involved be “generally accepted as reliable in the relevant scientific community,” (2) the witness testifying concerning the technique and its application must be “a properly qualified expert on the subject,” and (3) “the person performing the test in the particular case used correct scientific procedures.”  However, California case law provides that “Kelly/Frye only applies to the limited class of expert testimony which is based, in whole or in part, on a technique, process, or theory which is new to science and, even more so, the law.”  (Quoting California v. Stoll, 49 Cal.3d 1136, 783 P.2d 698 (1989).)  Relying particularly on California v. Craig, 86 Cal.App.3d 905, 150 Cal.Rptr. 676 (Ct.App. 1978), the Supreme Court of California concluded in the present case:

Scent trailing evidence is not so foreign to everyday experience that it would be unusually difficult for jurors to evaluate. Jurors are capable of understanding and evaluating testimony about a particular dog’s sensory perceptions, its training, its reliability, the experience and technique of its handler, and its performance in scent trailing, such as performed in this case.

The Court also argued that it was “unlikely that a juror would believe that dogs are scientifically infallible….”  This presumption that juries are largely neutral to canine evidence and participation in trials should, in the opinion of the authors, be subjected to sociological research.  (See discussion of jury influence in “Cases and Statutes on the Uses of Dogs by Witnesses While Testifying in Criminal Proceedings” on the website of the Animal Legal & Historical Center.)  The effect of dogs is known to advertisers.  See Lancendorfer, K. M., Atkin, J. L., & Reece, B. B. (2008). Animals in Advertising: Love Dogs? Love the Ad! Journal of Business Research, 61(5), 384-391.

On the issue of trained canine fallibility, the Court referred to the testimony of State Trooper Douglas Lowry, an expert witness for the prosecution. 

On cross-examination, Lowry testified that in practice, he observed dogs change their trail from an older scent to a newer scent, and that he observed this more often with newer dogs. He also testified that dogs, like people, have good days and bad days, as well as days when they simply do not want to work.

The fact that dogs can change what they are trailing is one of the reasons for a frequently mentioned trailing requirement that a dog be put on the trail during the period of its reliability.  Since there were samples that preserved the scent of the crime scene, the issue becomes whether the scent remained in sufficient strength to be used for a trailing activity.  This issue is particularly relevant to the station identifications performed by Harvey four years after the crimes. 

Harvey’s Station Identification Procedures in February 2005

After the defendant was found guilty, but before his sentence was imposed, there was a penalty phase that had to be repeated because the jury deadlocked in the first penalty trial.  During this penalty-phase retrial, Dr. Harvey testified concerning two additional station identifications she performed in February 2005.  These procedures were performed in the San Bernardino police station, where Jackson had never been before.  The purpose of the procedures was, according to the Supreme Court, “to determine whether Jackson’s scent was on a gauze pad that had been stored with the envelope recovered at Myers’s house.”  It was not stated, and perhaps not explored yet again, whether Jackson may have been brought to the station and taken to a location by officers who themselves could have been bearing the suspect's scent. 

A video of the procedures was shown to the jury and is summarized by the Court as follows:

First, Dr. Harvey scented her dog, Shelby, off the gauze pad that Traughber had placed inside the envelope found on Myers’s bed in June 2001. Shelby trailed through the sally port, smelled three doors, and indicated that she wanted to go through one of them. On the other side of the door, she trailed down a corridor and indicated she wanted to go through one of two doors. Shelby arrived in another corridor containing eight locked jail cells. Shelby smelled all eight and then stood still in between the seventh and eighth cells. The door of the eighth cell was opened; Shelby went inside, smelled the detainees, and walked out again. The seventh cell, containing Jackson, was opened; Shelby went inside, smelled Jackson, and walked back out. Dr. Harvey testified that this was not an identification “to her satisfaction.” Dr. Harvey further testified that she “felt that Shelby had a good trail” but was being “rather lazy.” Because Shelby “was not trying to trail out of that area” and “was going around and around in circles,” Dr. Harvey opined that “that smell that she was looking for was in that area, but for some reason she just refused to make an identification.”

So the dog, given a choice of eight cells, could not choose between two of them and the choice was made for her.  Then, because the dog did not leave the vicinity, it was concluded that a match for the scent she had been given was somewhere near. Harvey then repeated the procedure with a second dog:

Dr. Harvey conducted the same task with her other dog, Dakota. Dakota walked through the sally port and the same series of doors as Shelby had until she arrived on Jackson’s corridor. Dr. Harvey opened Jackson’s cell door, Dakota entered, sniffed around, and walked out again. Dr. Harvey gave Dakota the verbal command “show me,” but Dakota just stood there and whimpered. Dr. Harvey testified that Dakota’s behavior constituted an identification….

When asked what the dog’s behavior indicated, Harvey testified:

A. That indicates to me that she was still doing her job; however, she chose to do her job the way she wanted to do it, which was in direct conflict to how I would like her to do it, which is a jump-up.... [E]ach dog, I guess you could say, chooses their own identification, and the handler has to learn that identification from the dog....

Q. What does Dakota usually do?

A. Dakota does one of two things. She will either do what you saw her do, or she will do a jump-up identification.

As with Webb’s dog, a trained final response—assuming the jump-up was trained—was not performed, yet the handler claimed that the dog had made an identification apparently based on an undefined level of interest.  The Supreme Court, to its credit, realized that this had not happened:

Notably, neither Shelby nor Dakota positively identified Jackson. Even though Shelby began to trail immediately, indicating that she had found a match between the scent item and the scent trail, she did not unambiguously alert on Jackson. Instead, she went into and out of two locked rooms, smelling everyone in both rooms, including Jackson. Yet, as Dr. Harvey testified, Shelby did not “choose to make an identification” in her usual way. Likewise, according to Dr. Harvey, Dakota began to trail immediately following the same route, perhaps even a little faster than Shelby. She also sniffed several people behind the two locked doors, including Jackson. Yet she did not unambiguously identify Jackson. Dr. Harvey testified that she “wasn’t happy with [Dakota’s] identification,” stating that she would “prefer [Dakota] actually jump on them, so I can see a good identification.” Even after being directed to identify, Dakota refused and began to cry and whine. Dr. Harvey testified that she believed Dakota had made an identification, but she had “picked” her own way of making the identification, contrary to her training.

Harvey acknowledged that dogs, including her own, do make mistakes.  According to the Court:

Dr. Harvey, on both direct and cross-examination, testified that the accuracy of dogs was correlated with their age, with “veteran dogs” having a success rate of 95 percent, while novice dogs had a success rate of 60 percent. Dr. Harvey also admitted that even well-trained dogs have good days and bad days. When asked if she thought Maggie made mistakes, Dr. Harvey responded, “Oh, yes, I’m sure.” Testifying about her own dog, Shelby, she stated that she could tell “for sure” that Shelby had made mistakes in practices, even if she was not sure of mistakes made out in the field.

Despite acknowledging the possibility of mistakes, Dr. Harvey believed an identification had been made.  This belief was apparently based on the dog’s training:

“[W]e give consistent training to the dog. Then, when we take them to an unknown area trying to trail someone, as long as the dog is working in the same manner that they worked during training, we are able to say that this is consistent; therefore, we say it is reliable.”

This comes close to the frequently made argument that even if a dog alerted when it should not have, the dog was not wrong because there must have been residual odor present.  This becomes a means by which the scientific evidence for odor recognition becomes irrelevant because every alert has an explanation that is not the dog’s fault.  In the narcotics and explosives detection world, this makes dogs into “walking search warrants.” Here, if broadly accepted, it could make them into walking identification witnesses. 

Another defect of poorly conducted scent lineups and station identifications occurs when dogs may follow each other because the earlier presence of a dog at the same location has not been antiseptically removed (See Jezierski, above). The Court noted that the failure to make an unambiguous, positive identification “arguably worked to [Jackson’s] advantage.”  Nevertheless, the prejudicial effect of allowing an expert to state that the dog had made an identification should have resulted in the evidence being declared inadmissible. 

Testimony of Dr. Lawrence Myers

The defense called Dr. Lawrence Myers, who has been an expert witness in a number of scent identification cases.  Myers testified as to the complexity of human scent and how not knowing what chemicals dogs rely on in trailing humans made it, in the Court’s words, “hard to determine the reliability of an identification based on an older scent in which certain organic compounds may have degraded or otherwise changed.”  He also testified that the extent to which “various contaminations” might affect a dog’s abilities was unclear.

Dr. Myers testified that a dog can be cued visually to alert by the fact that only one person in an array is wearing a bright jumpsuit and handcuffs. He also described how a handler can cue a dog by walking at a different speed, tugging or letting up on the leash, or changing her tone of voice. He said he would be “very concerned” if the target or decoys in a scent identification task were known to the dog, although he could not say that it would “definitely” affect the outcome.

This testimony raises questions about Lowry’s use of a decoy that was known to the dog in his ninhydrin experiment. 

Myers also indicated that a scent lineup where only one of the individuals in the lineup was in a jumpsuit and handcuffs was “not a very good lineup” because the situation involved “a cue that’s hard to ignore.”  In rebuttal, the prosecution asked Webb if dogs are “colorblind,” to which Webb said they were.  This is not entirely true, though dogs have fewer color-sensitive cone photoreceptors than humans do.  See Miller, Wyman (2001). Vision in Animals-What Do Dogs and Cats See? PP. 27-8 in the 25th Annual Waltham/OSU Symposium: Small Animal Ophthalmology.

Thus, there does not seem to have been any real exploration of what Myers was saying, that the circumstances may point to an individual in a group for a dog just as they may point to that individual for a person looking at the group. 

Conclusion

Canine procedures occurred at least seven times in this case:
  1. Trailings of Webb and Maggie May at Mason’s house the morning of June 22, 2001. Result: first trailing went to backyard of residence where suspect was living; second went elsewhere.
  2. The station identification of Webb and Maggie later the same day at the Spruce Street police station. Result: no alert, dog stopped trailing at suspect but may have been confused by air conditioning.
  3. A canine search of the area where Jackson thought he may have thrown a woman from his car. Result: no body or other evidence found.
  4. The station identification of Webb and Maggie on June 25, 2001, at the Orange Street police station. Result: Court provided two descriptions of the dog interacting with Jackson, one of which indicated an alert. Since dog was scented to envelope that had been sprayed with ninhydrin, subsequent verification of effects of ninhydrin were undertaken.
  5. Trooper Lowry’s ninhydrin-related trailing test using a dog (pre-trial but otherwise undated). Result: ninhydrin found not to interfere with dog's abilities.
  6. Dr. Harvey’s test with three ninhydrin-related trailing tests (also pre-trial), using three dogs. Result: same as 5.
  7. Dr. Harvey’s station identification of Harvey and two dogs in February 2005 (post-trial, between two sentencing trials).  Result: handler claimed identification occurred by Court's description only indicated interest. 
In sum, there were three identification procedures, two near the time of the crime and one (involving two dogs) four years after the crime.  Only one of the earlier identifications may have resulted in an alert.  In none of these procedures were there adequate scientific protocols and in only one station identification was there even arguably a trained final alert. Only in the first procedure, trailing from Mason’s house, was valid evidence produced that should have been admissible, and that evidence was of the route that the perpetrator may have followed upon leaving Mason’s house, and where the perpetrator left the purse taken from Mason.  Even in that case, a repeat of the trailing from the garbage can did not confirm the first result so arguably even these events should have been excluded as prejudicial.  

Other non-canine evidence was far more damning than anything the dogs did, including items of both victims found in Jackson’s possession, blood evidence that could be connected with Jackson, his confused memories of having thrown someone from his car, and testimony of other parties placing Jackson near the crime scenes.  The cumulative evidence, without any of the station identifications, might well have been enough to convict Jackson.  Inconclusive results from questionable canine procedures should not have been allowed to muddy the evidentiary waters in this case.

Although the California Supreme Court seems certain that jurors are not overly influenced by canine testimony and will naturally understand that dogs can make mistakes, the Court itself uncritically accepts some claims that should have been subjected to rigorous cross-examination. 

[Webb] also described challenging tasks that Maggie had performed. In one instance, Maggie followed the scent of someone who wrote a letter that was mailed to Webb and kept in the freezer for four weeks. In another instance, Maggie identified the person who had handled an explosive device by following the scent that remained after the device was detonated. Maggie performed successfully on this task four times out of six and did not falsely alert on the remaining two trials.

Although a frozen letter may still have scent that can be detected and used to scent a dog, the circumstances of the trailing were not described (at least in the Court’s opinion), including whether this was a double-blind test.  Following the trail of a person who had handled an IED sounds remarkably like a 2010 study published in Forensic Science International and the subject of a prior blog on this site.  That study did find that dogs could be very accurate in following the trail of someone who placed an IED, but were less accurate in identifying these individuals from others in a room where the “perpetrators” had gone after leaving the devices. 

Andrew Taslitz, whose brilliant skewering of the scent lineup procedure as employed by American law enforcement remains the most trenchant analysis of the weakness of canine identification evidence, contacted me after reading an unpublished article I wrote with Tadeusz Jezierski and Michael McCulloch, on which we still receive occasional suggestions for new studies to incorporate.  Professor Taslitz, sadly no longer with us, then wrote an article that appeared in Criminal Justice in 2013 (vol. 28, p. 4), "The Cold Nose Might Actually Know? Science and Scent Lineups."  The article acknowledged that scientific procedures being developed primarily in Europe might be getting closer to an acceptable level of reliability to be admissible in U.S. criminal prosecutions.  The problem is, and I acknowledged this to the professor and have done so on several occasions, scent identification procedures as implemented in the U.S., including station identifications, are not up to those standards. 

A station identification is an artificial trailing situation in which a dog’s ability to follow a scent taken from a crime scene is verified in an environment that has nothing to do with that crime. Unlike the more sophisticated European scent lineups, the dog is not given a choice between scents of numerous individuals of similar economic and ethnic backgrounds, may in fact be following a trail of someone whose scent is closer to that obtained from the crime scene than other scents in the area of the station, may only have one choice of individual to choose from at the end of the trail, and may be allowed to interact with the suspect from a distance away, thereby possibly eliciting a response that can be taken as, or mistaken for, an alert.  The procedure encourages cueing, particularly when the target individual is easily distinguishable from others in the vicinity, such as by being handcuffed or in prison attire or both as in this case. It is not double-blind to third parties since the suspect is under arrest and individuals holding him may have to be advised that the station identification being conducted, and even if they are not told about it in advance, they are likely to understand what is happening and that it is intended as an identification.  Scent identifications are also seriously flawed because they do not involve antiseptic protocols as are required in more rigorous European procedures. 

Nevertheless, the California Supreme Court saw no problem with letting such evidence in and has just given life to a bogus procedure that, fortunately, at this point in judicial history, seems largely to confined to several police departments in Southern California. Hopefully the Court's poor reasoning will not infect other judges. 

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

Wednesday, July 27, 2016

Supreme Court Takes Case of Girl Whose Mobility Impairment Dog Was Barred from Coming with Her to School: Educating Educators about Non-Guide Service Animals Should Not Require Jumping through More Procedural Hoops than Are Required for Guide Dogs

The U.S. Supreme Court has granted certiorari in Fry v. Napoleon Community Schools, 788 F.3d 622 (2015), a case where a girl with cerebral palsy was prevented for two years from bringing her service dog, trained primarily as a mobility impairment dog, into an elementary school.  The school said that the girl already had a human aide as part of her Individualized Education Program (IEP) and that this aide was all she needed while attending the school. The family sued for damages, alleging violations of the Americans with Disability Act (ADA) and the Rehabilitation Act, but a federal district court in Michigan dismissed the matter because the parents had not pursued administrative remedies available to them.  The Sixth Circuit affirmed, with a significant dissent, and now the Supreme Court has agreed to hear the matter.

Statement of Question Presented to Supreme Court (Posted on Grant of Certiorari)
Although the question of whether the parents had to exhaust administrative remedies is a procedural issue, the fact that the school policy would have permitted the girl to bring a guide dog had she been blind means that an affirmance by the Supreme Court could encourage other school districts to view non-guide service dogs as more easily denied entrance than guide dogs. Other reluctant districts could insist on protracted hearings and appeals to mollify parents who do not want their children around dogs or staff who do not want to learn how to deal with service animals in classrooms. Users of and advocates for non-guide service animals have had a decades-long struggle to achieve social and legal parity with users of guide dogs and there is a real risk that the Supreme Court could deal this effort a major blow, not by substantively addressing the issue but by ignoring its existence underneath the procedural dispute that is at the core of this case. 

The service dog community needs to pay more attention to Fry v. Napoleon Community Schools than the case has so far received.

Ehlena and Wonder

The following summary of the case is drawn from the complaint, a report of the Department of Education's Office of Civil Rights, the district and circuit court opinions, and the petition for writ of certiorari.    

Ehlena Fry was born with spastic quadriplegic cerebral palsy, a condition that affects her legs, arms, and body, and significantly limits motor skills and ability.  She is not cognitively impaired but requires physical assistance for daily activities.  In 2008, her pediatrician prescribed a service dog.  Community efforts raised $13,000 to help Ehlena's parents pay for the training of a male goldendoodle named Wonder to become a service dog.  Part of the reason for obtaining a poodle cross was that the non-shedding or low-shedding coat of such a dog generally makes it tolerable to people with allergies to dogs. (Golden and Labrador retrievers are among the most common breeds used in guide and other service dog work, and the Australian effort to stably interbreed labradoodles was in significant part intended to create a hypoallergenic guide dog.)

Prior to meeting the Frys, Wonder had received ten to twelve months of training at a service-animal training facility in Ohio. The family underwent ten days of training at the facility in October 2009 and Wonder began working with Ehlena at that time.  Ehlena was five years old.  Wonder is able to assist Ehlena with balance when she uses a walker, opens and closes doors for her, turns lights on and off, helps her take off her coat, helps her transfer to and from the toilet, and retrieves dropped items.  Most of these skills fit within a category of service dog sometimes called a mobility impairment dog. 

One parent was trained as Wonder’s handler because Ehlena was not physically strong enough to handle the dog on her own, though Ehlena herself was responsible for giving verbal commands to the dog.  Thus, this was what is sometimes called a dual-handler arrangement and gave as much control to the child as possible. Wonder, Ehlena, and the parent passed a public access test (presumably something like the AKC Canine Good Citizen test) and were certified as a team by the training facility. The training facility requires that the team must return once a year for retesting and recertification.  Once Ehlena can handle the service animal on her own, she and the dog will be recertified as a team of two.    

The family and the pediatrician expected Wonder to accompany Ehlena at all times to facilitate her independence and to ensure that Ehlena and Wonder would bond after training.  Before enrolling Ehlena in kindergarten for the 2009-2010 school year, Ehlena’s parents had informed the school administration that they were obtaining a service dog for Ehlena.  The principal raised some concerns about allergies and liability, but the Frys believed that Wonder would be permitted to attend school with Ehlena.  The Frys obtained letters from Ehlena’s treating physicians which stated that the service animal would increase Ehlena’s independence and help her improve her motor skills. 

First Day of School with Wonder

After the first day that Ehlena attended kindergarten with the dog, October 23, 2009, the parents received a phone call from the principal who told them that Ehlena would not be able to bring the dog to school for the time being because other students had complained that they were fearful of the dog and the school needed to do more research before allowing Wonder to return to the school.  Nevertheless, starting in December 2009, Ehlena attended school with Wonder, who helped her take off her coat and at least once retrieved her lunchbox when she dropped it. 

At a meeting on December 11, 2009, the school administrators met with the family and were told about what the dog was trained to do and how it would increase Ehlena’s independence and reduce her reliance on the human aide.  Stacy Fry, Ehlena’s mother, advised the Office of Civil Rights (OCR) that the administrators had told her they would take away the aide from Ehlena’s IEP services if the dog continued to come to school.  The administrators cited other reasons for excluding Wonder including (1) allergies of other students and faculty; (2) fears or phobias of other students and staff; (3) concern that Wonder would have an accident in the building; (4) concern that Wonder would be a distraction to other students; and (5) Ehlena’s lack of need for the service animal because she had a human aide.  On January 4, 2010, the Frys obtained another letter from one of Ehlena’s treating physicians stating that Ehlena would still need a human aide when using Wonder. 

Individualized Educational Program Meeting

At an Individualized Education Program (IEP) meeting on January 7, 2010, the IEP team considered whether the service animal was necessary to provide Ehlena with a free appropriate public education (FAPE).  The team believed that the issues to be resolved were (1) what disability-related educational need of the child would the service animal address; (2) would the service animal enhance or hinder Ehlena’s ability to progress in the general curriculum; (3) could Ehlena be responsible for the service animal; and (4) could the distraction created by the service animal be accommodated without comprising the learning environment.  These questions were answered by the team in such a way as to preclude admission of the service animal to the school. 

The IEP for Ehlena, signed by the Jackson County Intermediate School District Director and the principal of the Ezra Eby Elementary School, rejected the request of Ehlena’s parents to have Wonder accompany their daughter to school to enhance her independence, stating that the girl’s “physical and academic needs are being met through the services/programs/accommodations of the IEP.”  The IEP provided that, in addition to the human aide who would work one-on-one with Ehlena, she would  receive occupational therapy, physical therapy, speech language services, extended school year services, and resource program services. 

Temporary Permission to Bring Wonder to Kindergarten Classes

At the January 7 meeting, the parents agreed to mediation to resolve issues relating to the service animal.  The first mediation session occurred on January 29, 2010.  On March 18, 2010, a physical therapist and a speech language pathologist that were treating Ehlena outside of the school sent a letter to the school administrators outlining how they incorporate Wonder into their therapy sessions.  During those sessions, Wonder assisted Ehlena in directional control of her walker, helped Ehlena stabilize herself while transitioning into and out of her walker from a seated position or from the floor, provided posterior support to improve Ehlena’s sitting balance, stood behind or beside Ehlena when she was standing up for improved safety, and picked up dropped items.  The letter indicated that adult stand-by assistance was still needed for added safety but would become less so as Ehlena’s independence increased. 

The mediation resulted in an agreement that allowed Ehlena to bring Wonder to school for a 30-day trial period beginning on April 12, 2010, which was extended through the end of the school year on June 11.  During that period, however, Wonder was required to remain in the back of the classroom and could not assist in Ehlena with many of the tasks he had been trained to perform for her.  He was not even permitted to accompany or assist Ehlena during recess, lunch, computer lab, or in the library, and could not walk with her on the track during “Relay for Life,” a school play, or “field day.” Presumably some of these prohibitions were intended to keep the dog away from other children.

During the trial period, the school contacted the parents of other students and surveyed staff regarding their concerns with the presence of Wonder at the school.  Among information received by the school was that one teacher and two students reported that they were allergic to dog dander, one teacher had a phobia about dogs, and one parent expressed concern about her child being in the presence of the dog because the child had been attacked by one several years before.  Four parents said that they were concerned about the dog being a distraction, though only two of those parents had children in the same classroom as Ehlena. 

School Looks for Wonder to Make Mistakes

During the trial period, the school maintained records regarding the presence of Wonder, and Stacy Fry, who appears to have come to school to be with the dog at the back of the room.  The OCR report states that the school kept records of each time the service animal required more than one command or attempt to complete a task, the handler read a book or magazine, took notes, or typed on her cell phone, said anything to or responded to a staff person or another student, or left the room to take her other child to his classroom before the bell rang.  The school also noted whenever Ehlena did not use Wonder but could have, or made a face when Wonder retrieved something for her that had slobber on it. The school apparently disapproved of any humor occurring in the bonding process. Thus, the school used the trial period not to increase staff and student awareness of the value of the dog but rather as a way of gathering evidence that it could use to argue against the dog's suitability for coming to the school with a student in the future.    

The OCR report says that the school specifically did not allow Ehlena to use the service animal for toileting and that once she was required to demonstrate her use of the service animal while using the toilet, with the stall door open and four adults watching.  The school also documented one barking incident at the end of one school day when the dog saw two boys roughhousing, and one growling incident, which occurred after school had ended.  The dog obeyed Stacy Fry’s command to cease the action according to both the Frys and the school records. School officials obviously did not understand that any new service dog undergoes a period of adaptation to its responsibilities.  Even guide dogs can become distracted.  Wiggett-Barnard and Steel (2008), in a study of the experience of owning a guide dog, quoted one guide dog user complaining that his dog was easily distracted by squirrels when he walked near a garden.  "My cane doesn't get distracted by squirrels," the man said.  Service animals remain animals and users have to allow the dog to be a dog on occasion.    

Following the trial period, the school once again determined that it was not required to permit Wonder to accompany and assist Ehlena because it was meeting all of her education needs by providing her with a human aide.  The school also declined to acknowledge Wonder as a service animal because Ehlena could not handle the dog on her own.  As will be discussed below, this argument may have been based on the regulatory definition of "service animal" that was in effect at the time.   

Office of Civil Rights Gets Involved

The Frys began homeschooling their daughter on July 30, 2010, and filed a complaint with the Office of Civil Rights in the U.S. Department of Education.  The homeschooling, using an online curriculum, continued for two years.

The Office of Civil Rights issued its findings on the matter in a letter dated May 3, 2012. OCR determined that the evidence was sufficient to conclude that the school district had excluded Ehlena from “participation in their educational programs and activities when they refused to allow her to have her service animal accompany her in parts of the school’s program....” 

The OCR findings add the significant facts that in addition to cerebral palsy, Ehlena “has a diagnosis of attention deficit hyperactivity disorder (ADHD) and has a history of seizures.”  The latter fact is particularly important because of research indicating that service dogs sometimes begin spontaneously alerting in advance to medical episodes such as epileptic and diabetic seizures, which would be relevant to the potential consequences of separating a service dog from a child being served by the dog. 

The school’s policies on service animals were, the OCR report notes, restricted to guide dogs, as to which a student would apparently only have to establish certification.  For a guide dog in training, the student would have to establish that the dog was nevertheless covered by insurance.  The OCR listed the failure to have a policy broad enough to cover service animals as a compliance concern.  The OCR report also stated:

Additionally, the Policy requires a student seeking to use a service dog in the school environment to provide documentation of the dog's certification, whereas the Title II regulation explicitly states that public entities cannot require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Moreover, the Policy does not specify the permissible inquires that a public entity can make and the circumstance in which the public entity may not make inquiries, such as when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability. The Policy also does not specify the circumstances in which the service animal may be properly excluded, including the proper inquiries that must be made when the District believes a service animal presents a direct threat to others.

The OCR concluded that the denial of Ehlena’s use of her service dog violated both Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act.  The resolution agreement that the school and school district entered into with OCR did contemplate that, if Ehlena returned to the Ezra Eby Elementary School, the parents would have to provide a handler, who would have to undergo a criminal background check.  Although schools have sometimes been required to assign minimal handling responsibilities to individual aides, this possibility does not seem to have been considered by OCR.

Subsequent to the OCR findings in May 2012, recognizing that the battle was lost, the school and the district agreed to permit Ehlena to attend school with Wonder beginning in the fall of 2012.  In discussing Ehlena’s return with the principal of the school, however, the parents developed serious concerns that the administration would resent their daughter and make her return to school difficult.  Instead, they enrolled Ehlena in another district where the staff welcomed both the child and the dog. 

Frys File Lawsuit

On December 17, 2012, the Frys filed a complaint in federal court against Napoleon Community Schools, the school district, and the school’s principal, seeking damages for:

(1)   denial of equal access to school facilities,
(2)   denial of the use of Wonder as a service dog,
(3)   interference with E.F.’s ability to form a bond with Wonder,
(4)   denial of the opportunity to interact with other students at Ezra Eby Elementary School, and
(5)   psychological harm caused by defendant’s refusal to accommodate E.F. as a disabled person.

The Frys based their claim on Title II of the ADA, section 504 of the Rehabilitation Act, and the Michigan Persons with Disabilities Civil Rights Act.  The district court declined to exercise supplemental jurisdiction over the state law claim. 

The defendants, no longer raising substantive objections to Wonder coming into the school, relied on the fact that the plaintiffs had not pursued additional administrative remedies available after the school had denied access to Wonder. 

District Court and Circuit Court Decisions

Both the federal district court for the Eastern District of Michigan and the Sixth Circuit Court of Appeals resolved the issue in favor of the defendants, not on substantive issues having anything to do with the service dog but rather on the fact that the Frys could have pursued administrative remedies, including requesting a hearing under 20 U.S.C. 1415(f) from the school district’s determination at the end of the trial period that Wonder was not a service dog and the Frys were not entitled to have the dog accompany their daughter to school. Following that there could be an appeal under 1415(g). 

The majority opinion of the Sixth Circuit acknowledged that the Frys, had they pursued procedural remedies, might have been able to show that having the dog in school would have been better for Ehlena:

If the human aide was not a sufficient accommodation, it was because he or she did not help E.F. learn to function independently as effectively as Wonder would have and perhaps because he or she was not as conducive to E.F.'s participating confidently in school activities as Wonder would have been…. [H}aving Wonder at school was important for E.F. to "form a bond" with the dog, a bond that would make Wonder a more effective service animal "outside of school." The Frys characterize Wonder's independent value to E.F. as assistance with specific physical tasks, enabling her "to develop independence and confidence," and helping her "to bridge social barriers." Thus if the human aide was not a sufficient accommodation relative to Wonder, that was because he or she did not increase E.F.'s ability to perform physical tasks and function confidently and independently outside of school. One might also infer, though the Frys do not allege it directly, that relying on only a human aide without the additional presence of a service dog would inhibit E.F.'s sense of confidence and independence, as well as her ability to overcome social barriers, in school.

Without judging whether the pleadings were sufficient to put Wonder’s benefits to Ehlena in school in issue, it is obvious that being able to transfer to and from a toilet with the assistance of the dog, even if Stacy Fry or the aide had to be present until Ehlena developed the necessary strength and coordination, would have been preferable to requiring her to be dependent on the human aide for this function indefinitely.

The majority concluded that the harms of not permitting Wonder to attend school with E.F. “fell under the scope of factors considered under IDEA [Individuals with Disabilities Education Act] procedures.”  The court cited the 2008 decision in Cave v. East Meadow Union Free School District, 514 F.3d 240 (2d Cir. 2008), which stated that a “request for a service dog to be permitted to escort a disabled student at school as an ‘independent life tool’ is hence not entirely beyond the bounds of the IDEA’s educational scheme.” 

Judge Daughtrey’s Dissent

Circuit Judge Martha Craig Daughtrey correctly saw that the Frys “were not dissatisfied with Ehlena’s educational program,” but were maintaining rather that “for Ehlena to develop the confidence necessary to achieve independent mobility, she and Wonder needed to be together around the clock, including during school hours.” The claim was thus “noneducational in nature….”  Allowing Ehlena to develop basic mobility and more independent motor skills “is not a subject taught in elementary school.”

Judge Daughtrey remarked on the school’s small-minded threat to eliminate the human aide from Ehlena’s IEP “if her parents insisted on having Wonder accompany Ehlena in school,” and saw the discrepancy in the policy between guide and service dogs as also making the concerns about allergic reactions of other students and the staff rather nothing but an excuse:

Even more astounding, the school district refused to recognize Wonder as a service dog despite his official certification, possibly because school policy explicitly allowed "guide dogs”—but not “service dogs”—on school premises, giving lie to the claim that Wonder was objectionable because he might cause allergic reactions in staff members and students or become a distraction to others.

Judge Daughtrey correctly labels any distinction between guide dogs and service dogs, from a legal perspective, as “purely semantic.”  She finds a incisive analogy:

If, for example, the school district declined to permit Ehlena to come to school altogether, that action would violate both the ADA and the Rehabilitation Act, by denying her access to a public facility and its publicly-funded program, and it would also violate the IDEA, by depriving her of a "free appropriate public education." On the other hand, if the school lacked ramps providing access to the building by someone using a wheelchair or walker, rectification of such an ADA violation would not likely be accomplished by modification of an IEP. In short, the ADA's focus is on ensuring access; the IDEA's focus is on providing individualized education. The point missed by both the district court and the majority is that for Ehlena, Wonder functions as an access ramp — not just in terms of the school building but, more significantly, in all aspects of her life.

Another analogy might be to say that the school effectively concluded that Ehlena could have only one device related to her disability with significance beyond her educational objectives.  The fact that a multi-faceted mobile sentient and trained animal functions as something of a super-prosthetic was not considered. (In 2001, Mary Michelle Camp, quoting earlier research, referred to service dogs as "the ultimate assistive technology.")

The human aide, as the judge observes, is “not there to help Ehlena develop and maintain balance and mobility, but to ensure her ability to progress in her academic program.  To equate that assistance with the function of the service dog, as the school district did and the majority appears to approve, is ludicrous….” The problem was not with the IEP at all: 

[W]hat is clear from the record — the complaint and attached exhibits — is that the request for a service dog would not require a modification of Ehlena's IEP, because that request could be honored simply by modifying the school policy allowing guide dogs to include service dogs. That wholly reasonable accommodation — accomplished by a few keystrokes of a computer — would have saved months of wrangling between Ehlena's parents and school district officials; it would have prevented her absence from public school during the two years she was home-schooled following the school's decision; it would have avoided the disruption of relocating the child and her service dog to another school district; and it would have mooted the question of exhaustion and eliminated the necessity of litigation that has ensued since this action was filed. (emphasis added)

Unfortunately, this is also a blueprint to other schools looking for mechanisms to resist the admission of non-guide service dogs: don’t modernize any policy that provides that guide dogs are to be accommodated but which does not mention other service animals!

I have to wonder how the school would have reacted to a medical alert dog, one that alerts in advance to epileptic or diabetic episodes. The OCR report stated that Ehlena had a history of seizures.  As I discuss in Chapter 25 of Canine Olfaction Science and Law, there is considerable debate as to whether medical alert dogs are operating on their sense of smell, on their ability to detect minute changes in behavior of humans, or on some combination of both.  As new types of medical alert dogs are developed, it may be found that detection of different conditions brings in different parts of the canine sensory apparatus.  What is clear, however, is that for most such alerting functions the dog has to be relatively close to the individual to detect the change.  Requiring such a dog to remain at the back of a classroom could potentially be tragic. It should also be noted that alerting to medical conditions is sometimes spontaneous, so a dog trained for mobility purposes might on occasion begin to alert to episodes of a child like Ehlena.  

IEP or 504 Team Approval Section (Parental Request for Service Animal Approval)
Some school systems, recognizing that the prescription of a service animal is a medical matter, provide the IEP team the opportunity to approve or deny a parental request for a service animal to accompany a student in school facilities but expect that, if the form is properly filled out with individualized tasks identified, the IEP team will check the "Approved" box.

Solicitor General Recommends Supreme Court Grant Certiorari

The Supreme Court invited the Solicitor General to express the government’s views, and in May 2016 the Solicitor General recommended that the petition for certiorari should be granted.   The Solicitor General’s brief reviewed the history of the IDEA and the relief available under it, which does not include money damages, and described the exhaustion requirement that was central to the defense in Fry.  The Solicitor General stated that the Sixth Circuit had “erred in holding that [the Frys’] claims were properly dismissed…” under the IDEA.  The brief noted that the Sixth Circuit “appeared to ground its analysis on a perceived need ‘to preserve the primacy the IDEA gives to the expertise of state and local agencies’ in determining whether a child has been denied a [Free Appropriate Public Education] under the IDEA.”

Since at least four circuit courts would generally follow the Sixth Circuit’s approach, but a number of others might not for a variety of reasons, and because such disputes are recurring, the Solicitor General argued that the Supreme Court should hear the matter.   On June 28, the Supreme Court agreed that it should resolve the persistent disagreement among the circuits. 

What the Supreme Court Will Consider

The Supreme Court’s grant of the motion for certiorari stated the question presented to it was the following:

The Handicapped Children's Protection Act of 1986 (HCPA), 20 U.S.C. § 1415(l), requires exhaustion of state administrative remedies under the Individuals with Disabilities Education Act (IDEA) for non-IDEA actions "seeking relief that is also available under" the IDEA. The question presented, on which the circuits have persistently disagreed, is:

Whether the HCPA commands exhaustion in a suit, brought under the Americans with Disabilities Act and the Rehabilitation Act, that seeks damages—a remedy that is not available under the IDEA.

Read alone, this seems to have nothing to do with service dogs and, admittedly, it is possible that the Supreme Court could rule on the matter with little mention of the dog involved beyond the fact that the reason that administrative remedies were not exhausted had to do with the parents’ concern that letting their daughter go to school without the dog would break the developing bond between the two. 

It is also possible that the Supreme Court, however it rules, may make no mention of the distinction the school’s policy effectively made between guide and service dogs.  Yet, Judge Daughtrey’s dissent tears away the fa├žade that a totally procedural perspective on the case builds in front of the truth about what is really going on: a school that did not understand what a mobility impairment dog is, how important it can be to the life of a child, was able to hide behind the sham of a procedural nightmare and avoid admitting the dog for long enough to force the parents to find a different school system.  

The Changing Spectrum of Service Dog Functions

After World War I, members of the German Shepherd Club of Germany, who had trained dogs for a variety of functions during the war, decided that the ambulance dog function might be adapted to civilian life.  Dogs were trained to lead wounded soldiers back to aid stations, or more frequently brought stretcher bearers or other help to wounded who could not move themselves.  Thus, they were historically the first mobility impairment dogs.  Soldiers could be wounded in many ways, but after the war the German Shepherd Club decided to focus on soldiers who had been blinded, whose mobility was being impaired by a limitation of vision.  For this peacetime function, dogs fitted with stiff leads or halters were paired with soldiers living in rural areas as it was thought that dealing with traffic might be too much to ask of the dog.  It was soon realized that this was incorrect. 

Visiting Switzerland, Dorothy Harrison Eustis of the United States began working at a guide dog training program, and in 1927 wrote an article for the Saturday Evening Post that received widespread attention in the U.S.  Soon after she returned and began training dogs for blind people and founded The Seeing Eye.  For several decades, guide dogs were the only dogs performing such a specialized medical function in the U.S. and other types of dogs were not discussed very often in the press until the 1970s and after. The first U.S. program of which I am aware to train dogs specifically with mobility impairment functions began to do so in 1973 (Rintala et al. 2002).

The 1991 ADA regulations, 28 CFR 36.104 (56 Fed. Reg. 35544, July 26, 1991), defined a service animal as follows:

Service animal means any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.  (emphasis added)

The first thing to notice about this definition, for current purposes, is that it only lists two specific types of service animals, guide dogs and signal dogs, the latter now more commonly referred to as hearing dogs.  The second thing to notice is that one function that is acknowledged as within the sphere of service dog responsibilities is “pulling a wheelchair,” though the concept of “mobility impairment dog” as a type of service animal is still in the future in 1991. (This definition applied to public accommodations but not to public entities, such as the school involved here.)

Now come forward 19 years to the revisions of the ADA regulations in 2010 (75 Fed. Reg. 56236, September 15, 2010), where the Department of Justice seeks to build a broader concept that can deal not only with traditional types of service animals but also to allow for the development of more types in the future.  (Another change in 2010 was that public entities were covered by service animal requirements.)  Several sentences irrelevant to the current discussion are deleted, while those having to do with guide and mobility impairment dogs are italicized:

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…. The work or tasks performed by a service animal must be directly related to the handler’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors…. (emphasis added)

Notice that the term “guide dog” does not even appear within the definition.  The preamble explains:

Traditionally, service dogs worked as guides for individuals who were blind or had low vision. Since the original regulation was promulgated, service animals have been trained to assist individuals with many different types of disabilities.  (75 Fed. Reg. 56269)

Signal dogs are now not mentioned at all, though alluded to in the reference to “alerting individuals who are deaf or hard of hearing to the presence of people or sounds….”

The emphasis has thus come to be on the training, and that the “work or tasks” the dog is trained to do must relate directly to the “handler’s disability.”  In 2011 (76 Fed. Reg. 13285, March 11, 2011), the word “handler’s” was changed to “individual’s” because it was realized that, with certain types of service dogs such as autism service dogs (and in fact the dog in issue here), the individual with the disability that the dog serves may, in fact, not be the person who handles the dog, i.e., the person who gives it every command.  This change again reflects a desire to have a functional definition that would allow trainers to devise training programs for dogs to work with individuals who have any disability where the dog’s service could help that individual achieve as normal a life as possible. 

This conceptual change in what a service dog can do was adopted to various degrees by other agencies, and understood by many courts, but there are legacy decisions and rules that refer only to guide dogs, or to guide and signal dogs, and it is to this day not hard to find cases where employees of various businesses deny entrance to someone with a service dog on the incorrect assumption that the only real service dog is a guide dog.  Cases with facts of this sort could fill a good portion of a treatise. 

The Napoleon Community school system had, buried within its procedures, one of these remnants from a time when guide dogs were the only service dogs that almost anyone had, or anyone even knew about.  This is not an uncommon situation.  A local state park near where I live has an entrance booth with a sign taped to the ranger’s window stating, “No Dogs Allowed Except Guide Dogs.”  I have asked several employees about the sign and been assured that it no longer applies, but that even when it did it was interpreted by the staff as meaning service dogs.  The current rule is that all dogs have to be on leash, but even my dog, a registered therapy dog, or even a pet, is acceptable.  “We’ve asked for a new sign a million times,” one ranger assured me, “but they never send us one.” 

Conclusions

With a service dog, dog and human become something of a unit, physically united in performing certain tasks, even combining their intelligence, their minds, to solve problems that neither could alone.  It takes time for that type of joint functioning to develop, regardless of the type of service dog. 

Service dogs, because they may spend between one and two years developing the skills they will eventually use, often with little or no contact with the person they will serve, must be able to develop a stronger bond with the person with whom they are eventually paired later in their lives than is often true of pets.  Such dogs and their ultimate users and masters must then progress through an adaptation process where complicated sequences of behaviors are initiated by one or the other, with each developing intuitions regarding the responsibilities and timing of the other. This is now a scientific subject being investigated by a number of laboratories around the world.

Creating additional separations, as occurred for parts of the day in the trial period when Wonder was permitted to enter the school, or for a much longer period each day, had the Frys accepted the school’s exclusion of Wonder instead of homeschooling Ehlena, could have damaged the ultimate relationship between Ehlena and Wonder. Wonder could have lost training and Ehlena could find the separations sufficiently frustrating that she could have become reluctant to work through the process of learning to use the dog, delaying her own path towards greater independence. 

To say that the Ezra Eby Elementary School educational team has more expertise than a court to develop an appropriate educational program for a child is to ignore the fact that this particular school’s educational team obviously did not understand the importance of the dog as a life companion for someone with a serious disability, a companion that could not only be a friend but effectively a prosthetic, a multifaceted and self-operating tool, something that for Ehlena’s condition likely has no medical or mechanical equivalent.  Further, the educators did not understand, or did not care, that separating a child from her service dog, by keeping the dog from coming to school or even by insisting that it remain at the back of the classroom, could have consequences in her learning to use the animal and bond with it so that the long-term objective of maximum independence could be reached as quickly as possible.  

Part of the problem comes from the fact that the Department of Education, unlike most other cabinet-level departments, has not issued comprehensive regulations regarding service animals.  This was noted by the Government Accountability Office in 2009 for higher education (GAO-10-33), but is true of all educational levels.  Since schools have unique issues with regard to service animals, such attention from the Department is long overdue.

It is to be hoped that the Supreme Court's resolution of the procedural issue will not lead to more barriers for children with disabilities who receive the significant benefits that can be offered by highly trained service dogs.

Thanks for corrections and suggestions from Veronica Morris, Brad Morris, Bart Sherwood, and L.E. Papet.