Friday, October 7, 2011

Rashomon in the Courthouse: A Service Dog Story

As in Rashoman, there are four versions of the story, but let us begin with the dog handler:

Brenda, a veteran who suffers from a seizure disorder and requires the assistance of O’Neal, a service dog, came to an Ohio courthouse in the summer of 2009 to testify as a witness for a friend’s son. She was accompanied by her husband as well as the dog. The officer operating the metal detector informed her that animals were not allowed in the courthouse. Brenda explained that the dog was a service animal. The officer had not heard of this but said he would check with the judge where Brenda was expecting to testify.

The officer did not leave his post for 20 minutes, during which time Brenda’s husband showed him the papers the couple carried regarding service animals. Finally, just before lunch, the officer took the papers to the judge’s court officer, but the judge was going to lunch and said he would look at the papers after he came back. Apparently the judge was not immediately prepared to admit service animals.

The doors to the courtroom were locked and Brenda had to stand up during the entire hour the judge was gone. The court officials refused to let Brenda use a bathroom with her dog during this period and she had to go to a nearby Taco Bell to use a restroom. No one offered her a chair.

After lunch, just before the judge brought his courtroom back in session, Brenda was told she would be able to bring O’Neal inside. Angry at her treatment, Brenda sued.

How did the court officials see the matter?

Sergeant J.F. Brown was operating the metal detector alone. He had never encountered anyone trying to bring a service animal into the courthouse and had not been informed of any policy regarding service animals. He knew that Judge Sheridan Randolph had a policy against admitting animals into his courtroom. He told Brenda to wait because he wanted to get directions from the judge or his staff regarding the animal.

It took 20 minutes for Sergeant Brown to get away, but the judge’s court officer was equally unprepared to deal with the situation and the judge said he would look at the papers that were brought to him after he got back from lunch. Since he had not received approval to let Brenda into the secure area of the courthouse with the dog, Sergeant Brown could not permit her to use the bathroom.

Sergeant Brown and the other officers involved in the incident felt they had done their best in a situation they had not encountered before.

The matter ended up in the federal district court for the Eastern District of Tennessee, where it was assigned to Chief Judge Curtis L. Collier. His perspective is provided by the written opinion he issued in the matter, but since he was dealing with a motion for summary judgment by the defendants, he nominally accepted Brenda’s version of the facts, and otherwise considered the law. Insofar as he makes reference to the facts, he notes that there were no prior incidents of this sort, which would have put the County and its officials on notice, and even though Sergeant Brown stopped Brenda, he did so because he did not know what to do. The sergeant sought to find out, perhaps a little slowly, but not at a level that lifted the incident to one of discrimination.

Brenda sued under the Americans with Disabilities Act, under Due Process and Equal Protection clauses of the Constitution, and under state tort law claims, including negligence, invasion of privacy, and intentional infliction of emotional distress by Sergeant Brown. Judge Collier began by dismissing the ADA complaint against Sergeant Brown in his individual capacity since there is no individual liability under Title II of the ADA. Under 42 U.S.C. 12132, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Judge Collier noted that compensatory damages may be recovered under the ADA if there is intentional discrimination, and the plaintiff can show that the discrimination was directed toward her in particular. Tucker v. Tennessee, 443 F.Supp.2d 971 (W.D. Tenn. 2006). Bradley County, which operated the courthouse, where the incident occurred, argued that it could not be held liable for failure to supervise, since such a failure “is necessarily not directed at a particular disabled individual.” The County also argued that its failure to train Sergeant Brown regarding service animals was “not a specific act of intentional discrimination against Plaintiff herself….” Judge Collier agreed with the defendants and granted summary judgment on the ADA claim.

The judge also concluded that there was no evidence that the County had either a discriminatory or even an unofficial policy against the use in the courthouse of service animals by individuals with disabilities. Nor could Brenda “point to any ‘prior instances of unconstitutional conduct’ to demonstrate the County has ‘ignored a history of abuse’ toward individuals dependent on service animals, or even disabled individuals generally.” Judge Collier discussed a 2004 Supreme Court case, Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), which held that states are not exempt from ADA requirements when physical access to the courts is at issue. Although relevant to the case before him, Judge Collier stated:

“[H]olding as a general principle that the ADA is applicable with respect to courthouses is a far cry from placing municipalities on notice of an exhaustive set of particular accommodations and policies to be proactively implemented with respect to every conceivable disability.”

Although I believe that Judge Collier’s statement is correct as to the date when the incident occurred, I will argue below, when we get to my perspective, that he might not be correct now, given recent regulations issued by the Department of Justice.

Sergeant Brown also argued that he was covered by qualified immunity as to his actions. Judge Collier agreed, stating:

“Faced with what was to him the novel occasion of someone attempting to bring an animal into the courthouse, Sergeant Brown sought to consult with a higher authority before permitting Plaintiff and her service animal to enter. Mindful that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts,” [citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)], the Court cannot conclude Sergeant Brown would have known his causing Plaintiff to wait while he sought approval from Judge Randolph would have violated Plaintiff's clearly established constitutional rights.”

The court dismissed all federal claims, but dismissed the state law claims without prejudice, meaning that Brenda can pursue those arguments in state court if she wishes. I will not now comment on the likelihood of success in such a proceeding.

Lastly I’ll give my perspective, even if it might be wiser to stay off the field.

I believe Brenda had good reason to be angry. If the Bradley County court system were well operated, with personnel appropriately trained, she would not have encountered the embarrassment of having to explain her condition and the need for a service animal. She should not have been asked concerning the nature of her disability. Questions asked of her by court officials should only have been directed towards the functions the dog performed for her, not towards the nature of her disability. She would not have had to find a Taco Bell to use a bathroom. She should have been offered a chair as a matter of basic civility.

I also wonder what Sergeant Brown would have done had Brenda been blind and O’Neal a guide dog. The Department of Justice regulations generally place all service dogs into the same protected category, though regulations specifically applicable to state and local governmental services had not yet been issued in final form. Nevertheless, the broad public knowledge of the access rights of blind persons with dog guides has a longer history, and such a situation might take on a different tone.

All that said, Judge Collier was right in his application of the law and in his dismissal of the federal claims. Given all the circumstances, a case was not made against the County or Sergeant Brown. The outcome does not surprise me. Nevertheless, it is sometimes worth fighting the good fight and keeping the faith, sometimes worth yelling at the umpire, not that he’ll change his call, but so that he’ll be more careful on the next pitch (or so one hopes). A good deal of history in civil rights was made because lawyers kept fighting the good fight in cases they knew they were not likely to win.

Despite these ramblings, I believe that if the incident happened now, Brenda should win. Final regulations under 28 CFR Part 35, issued by the Department of Justice on September 15, 2010, specifically mention courthouses as covered facilities 13 times. (The proposed regulations had been issued in 2008, but a lot of rules are proposed without ever becoming final and the proposal only referred to courthouses once.) The regulations detail procedures for admission of service animals to state and local government services, which include courts. Information about the rules was widely disseminated by the Department of Justice and by a multitude of groups representing individuals with disabilities. The rules were discussed in depth in a prior blog here. Therefore, I believe that state and local courthouses, and the judiciary and officials working in these facilities, are now on notice that they must accommodate individuals with disabilities.

It is often forgotten that Rashomon, the great 1950 film by Akira Kurosawa, was not just a samurai film but also a film about a trial. Four stories are told by the survivors and witnesses of the incident, all of whom give such different accounts that viewers are never sure what happened. Nor do I know what really happened at the entrance to the Bradley County courthouse on August 11, 2009. I do not know if Sergeant Brown was surly and dismissive of a request that required him to make more effort than he was willing to give to his job. I do not know if Brenda was too quick to take offense. I do not know what emotional reaction I would have had to the incident had I been an eye witness. Even had I been there, however, my emotional reaction is irrelevant because I do believe that justice was done. A different justice should apply to such a situation if it occurred now.

Sears v. Bradley County Government, 2011 WL 4473876 (E.D. Tenn. 2011)

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