Wolves of Western Great Lakes No Longer Endangered, Fish and Wildlife Service Declares in Final Rules

The Fish and Wildlife Service has determined, in final rules, that the gray wolves of Minnesota, Wisconsin, and Michigan no longer meet the definition of threatened and endangered under the Endangered Species Act. The gray wolf has been protected since 1974, though initially called the eastern timber wolf (Canis lupus lycaon). In 1978, the gray wolf species was listed as endangered throughout the lower 48 states and Mexico, except in Minnesota where it was classified as threatened.

In 2010, the Service received petitions from the Minnesota Department of Natural Resources and the Wisconsin Department of Natural Resources requesting delisting of wolves in the states. Additional petitions to this effect were received from Safari Club International and the National Rifle Association of America. The Service acknowledged that there were factors supporting these petitions.

The delisting covers the Western Great Lakes Distinct Population Segment (DPS), shown in the map. (Double click on images to enlarge.) The final rules were published in the Federal Register on December 28, 2011 (71 Fed. Reg. 81666). The proposal to remove wolves in most of the eastern U.S. from coverage under the Endangered Species Act was described in a blog last May. The proposed delisting of wolves in Wyoming was discussed last October.

Classification of Western Great Lakes Wolves

The Service’s December 2011 release describes the various scientific classifications that have been proposed regarding wolves in the western Great Lakes:

1. A subspecies of gray wolf, Canis lupus lycaon.
2. A second subspecies, Canis lupus nubilis.
3. A wolf population that has interbred with coyotes.
4. A separate species, Canis lycaon (distinguished from Canis lupus).
5. Same as red wolf, Canis rufus, or a hybrid between the red wolf and the gray wolf.
6. A mixed population including various species and hybrids.

All of these possibilities have received support from various groups of scientists in the last ten years. Body and skull measurements were primarily used for classification in earlier studies, while DNA analysis dominates in more recent research. DNA research has supported various classification hypotheses. A particularly influential study was that of vonHoldt et al. (2011), which found that the Great Lakes wolf is a “highly admixed” variety derived from gray wolves, with some coyote hybridization. David Mech, a peer reviewer of the proposal, is quoted in the release regarding the current status of the argument that the wolves in the area are a separate species:

“Although it is true that at the writing of the proposed rule, it seemed like considerable evidence had accumulated supporting the existence of the separate species, Canis lycaon, or the eastern wolf, the vonHoldt et al. (2011) article published since adds enough doubt as to question that proposition. At the least, the vonHoldt et al. (2011) article evinces that there is not consensus by the pertinent scientific community about the existence of C. lycaon and therefore about the original range of C. lupus.”

Some of the research cited by the Service is not yet in print, including a manuscript by Service employees (Chambers et al.) which concludes that the eastern wolf is most probably not a subspecies but a full species, Canis lycaon. Despite acknowledging this possibility, the Service at present continues to recognize Canis lupus as the only species occurring in the western Great Lakes. Within this species determination, the Service notes that genetic research indicates the wolves of the area “are mostly of the same genetic makeup.” Wheeldon & White (2009); Fain et al. (2010).

Sizes of Wolf Populations

Probably anticipating opposition from conservation groups (which so far does not seem to be materializing), the Service makes a considerable effort to distinguish its actions from much less conservation-minded Canadian policies. The release notes that there are an estimated 4,000 wolves in Manitoba, which may be hunted nearly everywhere in the province from August 31 to March 31, and may be trapped about half the year. There are about 8,850 wolves in Ontario, with hunting and trapping permitted year-round in much of the province.

There is no doubt that wolf populations in Michigan, Minnesota, and Wisconsin have been increasing, or at least staying constant. The table shows minimum winter wolf populations of Minnesota, Wisconsin, and Michigan. The size of the population in Minnesota has remained most stable (though a census is not taken annually in the state), which the release explains as due to the fact that wolves “have successfully colonized most, perhaps all, suitable habitat in Minnesota.”

Wisconsin’s Bureau of Endangered Resources, within the Department of Natural Resources, issued a report in September 2011 describing the recovery of the state’s wolf populations, including the graph below. Wydeven et al. (2011).

Environments in Which Wolves Can Survive

The release describes the environments in which wolves now live as follows:

“A common misconception is that wolves inhabit only remote pristine forests or mountainous areas, where human developments and other activities have produced negligible change to the natural landscape. Their extirpation south of Canada and Alaska, except for the heavily forested portions of northeastern Minnesota, reinforced this popular belief. However, the primary reason wolves survived in those areas was not because of habitat conditions, but, rather, because remote areas were sufficiently free of the human persecution that elsewhere killed wolves faster than the species could reproduce [citing Mech (1995)].

“In the western Great Lakes region, wolves in the densely forested northeastern corner of Minnesota have expanded into the more agricultural portions of central and northwestern Minnesota, northern and central Wisconsin, and the entire UP [upper peninsula] of Michigan. Habitats currently being used by wolves span the broad range from the mixed hardwood-coniferous forest wilderness area of northern Minnesota, through sparsely settled but similar habitats in Michigan’s UP and northern Wisconsin, and into more intensively cultivated and livestock-producing portions of central and northwestern Minnesota and central Wisconsin.”

Road density has been shown to be “the best predictor of habitat suitability.” When road density is greater than 0.9 to 1.1 linear miles per square mile, wolves will not maintain breeding packs in the area. See Wydeven (2001). Other factors important for suitable habitat are human density, prey base, and size of the area. White-tailed deer density is important for wolves in the western Great Lakes. The Service concludes that for the foreseeable future, there should be adequate protection of suitable land, some of which is federal and state property and some of which is used commercial for logging.

Livestock Depredation

One downside of increased wolf populations is that more livestock will be killed by wolves. In Michigan, wolves were only verified to have killed three animals in 1998, but this rose to 46 in 2010. Naturally, this will increase the number of legal and illegal kills of wolves. For a study of risk mapping of livestock depredation from gray wolves, see Treves et al. (2011).

Comments on Proposed Rules

When delisting was proposed in May 2011, the Fish and Wildlife Service requested comments, and received over 800, 24 of which were from nongovernmental organizations with various interests. Some scientists, including David Mech, agreed that delisting in some areas was supported by the data. Environmental groups were particularly concerned with delisting by reclassification, an issue discussed here in May.

Conclusion

Although the wolf populations of Michigan, Minnesota, and Wisconsin have significantly increased, in many areas reaching stable levels, it must be hoped that federal protection can be resumed in the event that state, tribal, and other authorities do not pick up or continue their responsibilities to protect wolves. Given anti-regulation biases at most government levels in the U.S. today, and a public that is increasingly intolerant of any regulation perceived as threatening ancient rights, including hunting and trapping rights, despite the massive environmental changes introduced by humans, the long range protection of the wolves may not be as solid as the Fish and Wildlife Service would have us believe. A different administration, or maybe even this one, may not allow the Service to get back into the wolf preservation business even if it becomes necessary. It must also be questioned whether the Service would have the stomach for the inevitable political fight, something not evident in its wolf rulings in recent years.

Sources:
1. Chambers, S.M., Fain, S.R., Fazio, B., and Amaral, M. in prep. (2012) An Account of the Taxonomy of North American Wolves from Morphological and Genetic Analysis. U.S. Fish and Wildlife Service.
2. Fain, S.R., Straughan, D.J.,and Taylor, B.F. (2010). Genetic Outcome of Wolf Recovery in the Western Great Lakes States. Conservation Genetics. DOI 10.1007/s 10592-0068-x.
3. Mech,L.D. (1995). The Challenge and Opportunity of Recovering Wolf Populations. Conservation Biology, 9(2), 270-278.
4. Treves, A., Martin, K.A., Wydeven, A.P. and Wiedenhoeft, J.E. (2011). Forecasting Environmental Hazards and the Application of Risk Maps to Predator Attacks on Livestock. Bioscience, 61(6), 451-8.
5. vonHoldt, B.M., Pollinger, J.P., Earl, D.A., Knows, J.C., Boyko, A.R., Parker, H., Geffen, E., Pilot, M., Jedrzejewski, W., Jedrzejewska, B., Sidorovich, V., Greco, C., Randi, E., Musiani, M., Kays, R., Bustamante, C.D., Ostrander, E.A., Novembre, J., and Wayne, R.K. (2011). A Genome-Wide Perspective on the Evolutionary History of Enigmatic Wolf-Like Canids. Genome Research, 21, 1294-1305. For particularly good graphics relating to this paper, one of the authors, Roland Kays, has posted a slide show.
6. Wheeldon, T. and White, B.N. (2009). Genetic Analysis of Historical Western Great Lakes Region Wolf Samples Reveals early Canis lupus/ lycaon Hybridization. Biology Letters, 5, 101-104.
7. Wydeven, A.P., Mladenoff, D.J., Sickley, T.A., Kohn, B.E., Thiel, R.P., and Hansen, J.L. (2001). Road Density as a Factor in Habitat Selection by Wolves and Other Carnivores in the Great Lakes Region. Endangered Species UPDATE, 18(4), 110-114.
8. Wydeven, A.P., Wiedenhoeft, J.E., Schultz, R.N., Bruner, J.E., Thiel, R.P., Boles, S.R., and Windsor, M.A. (2011). Wisconsin Endangered Resources Report #141: Status of the Timber Wolf in Wisconsin. Bureau of Endangered Resources, Wisconsin Department of Natural Resources. Madison, Wisconsin.

Thanks to L.E. Papet, Eric Krieger, and Yva Momatiuk for additional sources and thoughts.

Restaurant Refuses to Let in Service Dog, Pays $250 Fine; Disabled Handler Left with $84,000 Legal Bill

Pursuing civil rights complaints privately, as opposed to obtaining the help of the Civil Rights Division of the U.S. Department of Justice, or a state or local agency with civil rights enforcement authority, can be expensive. A recent case involving a restaurant on Staten Island that refused to admit a service dog in 2006 has cost the woman whose dog was refused admission over $84,000, and as of this writing it is not clear that the case is over.

Incident at Staten Island Restaurant

Ilene Degregorio obtained a mobility impairment dog in 2005. The trial court described Degregorio’s use of the dog as follows:

“The service dog, which was present in court, wears a harness so that Ms. Degregorio could hold and lean on the dog for support and would support her when she stood and walked. The dog was trained to understand the commands of Ms. Degregorio and is capable of retrieving items, holding packages and opening doors. If Ms. Degregorio fell, the service dog could assist her to stand. As a result of the use of the service dog, Ms. Degregorio claims that she has substantially regained the independence she lost in 1991.”

The incident that led to the lawsuit was described by the trial court:

“On July 26, 2006, Ms. Degregorio claims she made reservations for six people and a service dog to go to defendant's Bella Vita II Restaurant for her birthday celebration. However, the reservation book presented by Adem Cukaj, the owner of the defendant restaurant, Richmond Italian Pavilion, Inc., doing business as Bella Vita II, discloses only that a reservation was made for six people and no mention of a dog. The reservation was not taken by Mr. Cukaj; it was taken by one of his employees. Nonetheless, Ms. Degregorio came to the restaurant, accompanied by her husband, two children, father-in-law, mother and her service dog. Upon arriving at the restaurant, everyone but Ms. Degregorio and her service dog entered the restaurant because she decided to first toilet the dog. After approximately five minutes, Ms. Degregorio entered the restaurant where she was confronted by Adem Cukaj, who told her that she could not enter the restaurant with a dog. In response, Ms. Degregorio informed Mr. Cukaj that she is disabled and the dog is a service working dog, which is permitted to enter the restaurant. Ms. Degregorio asserts that she was wearing the New York City Service Dog licensed on a necklace around her neck and that in addition, the service dog was wearing a vest with bold large lettering of ‘Service Dog,’ ‘Canine Companion for Independence,’ and ‘Please don't pet, I am working.’"

Canine Companions for Independence is one of the largest and best known service animal organizations in the world. The court further describes the restaurant owner’s reaction:

“Mr. Cukaj told Ms. Degregorio not to proceed any further and wait while he made a phone call to inquire about her right to be accompanied by the dog into the restaurant. Mr. Cukaj claims that he could not reach the Department of Health or his lawyer at 6:00 p.m. that evening because they were both closed. Upon returning to Ms. Degregorio, he told her that she did not appear to be blind and therefore he did not have to allow the dog in the restaurant and that perhaps she could leave the dog in her vehicle, since she had others present to assist her in walking to the table.”

The assumption that only guide dogs are true service dogs is, unfortunately, still found from time to time. Degregorio persisted with the owner:

“In response, Ms. Degregorio showed Mr. Cukaj her service dog license which had been issued by the New York City Department of Health, Canine Companions for Independence identification, and a pamphlet titled 'Legal Rights of Guide Dogs, Hearings Dogs and Service Dogs' stating that service animals are allowed in restaurants and other places of public accommodation. Mr. Cukaj briefly looked at the items, but told Ms. Degregorio that he cannot allow her with the dog into the restaurant because she was not blind. After some other words with Mr. Cukaj and her husband, Ms. Degregorio signaled her family, who had been previously seated and were served bread and water awaiting her arrival, to get up and leave the restaurant. Ms. Degregorio claims that Mr. Cukaj told her and her husband that it was his restaurant and he will do what he likes in it. Mr. Cukaj disagrees with that characterization of the events and asserts that he had decided to seat Ms. Degregorio with her dog, but that she and her family just left. However, when Mr. Cukaj was asked if he asserted himself to tell them not to leave, he claims he never tried to persuade them to stay.”

The owner appears to have felt that not understanding the law regarding service animals was a relatively trivial flaw on his part. The following is the trial court’s summary of his testimony:

“During trial, Mr. Cukaj did not dispute that Ms. Degregorio has a disability, nor did he contest her use and need of her service dog, or that his restaurant is a public accommodation as defined under federal, state and local laws. Further, Mr. Cukaj does not dispute that Ms. Degregorio demonstrated to him a service dog license, which he claims ‘I didn't even look, because she didn't look blind.’ Mr. Cukaj did not dispute that the service dog was wearing a vest clearly identifying itself as a service working dog. Mr. Cukaj claimed that he was ignorant of the law stating ‘I didn't know if the Health Department allows me.’ Mr. Cukaj advised the court that he allows disabled people into his restaurant regularly; in fact, on the evening in question another female patron was seated in a wheelchair in the restaurant when the Degregorio party was present. Moreover, Ms. Degregorio admits that she has eaten at the restaurant on prior occasions utilizing a wheelchair and a walker without her dog and the she was treated courteously by the restaurant personnel. Mr. Cukaj claims he was aware that blind persons are allowed to have a dog assist them in a restaurant, but he was not aware that persons with other disabilities were also allowed to have a service dog in a restaurant.”

Degregorio’s Rights Violated

The trial court found that the restaurant had violated the New York Civil Rights Law and Title III of the Americans with Disabilities Act, concluding that under a long list of “federal, state and local laws, Ms. Degregorio has the right to be accompanied by a service dog despite the fact that she is not blind.” Cukaj’s argument that he was ignorant of the law and regulation had “no force in law when determining liability.” The ADA covered “benign neglect, apathy and indifference.” As to New York law, the court stated:

“The New York Human Rights Law applicable to this case is contained in the Executive Law § 296(14), which states 'it shall be an unlawful discriminatory practice for any person...to discriminate against...a person with a disability on the basis of her use of a guide dog, hearing dog or service dog.' Hence, refusal to admit the service dog in these circumstances is tantamount to refusing to admit the person who is in need of the dog. Moreover, a public accommodation may not require the person with the disability to be separated from the service dog once inside the facility.”

The court analogized the circumstances to those in Johnson v. Gambrinus Company/Spoetzl Brewery, 115 F.3d 1052 (5th Cir. 1997), a case discussed extensively in Service and Therapy Dogs in American Society (Chapter 14: Food Safety Restrictions).

Penalty Findings

Degregorio attempted to make her suit into a class action for others similarly situated, but apparently did not comply with New York statutory requirements to establish a class. New York’s Civil Practice Law and Rules 901 and 902 specify class requirements, including that there be numerous members in the class, common questions of law or fact, claims or defenses typical for the class, appropriate representative parties, and that a class action be a fair and efficient way of conducting the litigation. It is not explained why the effort to certify a class was not made, but it appears likely that there were not enough members to the class since the restaurant probably did not exclude guide dogs and the number of non-guide service dogs attempting to enter might have been very few, if any besides that of Degregorio.

The trial court rejected punitive damages since a Court of Appeals case had previously held that punitive damages are not permissible in a court action for Human Rights Law violations (Thorson v. Penthouse International, Ltd., 80 NY2d 490 (1992)). Further, “the plaintiff has not even come close to establishing the requisite wanton and reckless or malicious conduct on the part of the defendant by a preponderance of the evidence, let alone by the clear and convincing standard followed by [certain state courts].” Also, “the plaintiff has not established any compensatory damages. Therefore, the claims for punitive damages must fail as well as the class action.”

Violation of New York’s Civil Rights Law from the denial “of equal use of and enjoyment of any public facility solely because said person is a person with a disability and is accompanied by a guide dog, hearing dog or service dog” was a violation with a fine of $250.

The court states that though ignorance of the law is not a defense on a discrimination violation, it may be considered in assessing a penalty. The court notes the lack of involvement of state and city authorities:

“Since the state legislature enacted the Civil Rights Law § 47-b and the Human Rights Law § 296(14), it was anticipated that such violations of those statutes would be enforced by either the New York State Division of Human Rights or the New York City Commission on Human Rights. Here, the plaintiff notified those agencies and the Attorney General, and none of them has appeared in this matter. The plaintiff is therefore prosecuting this violation individually. The plaintiff seeks compensatory and punitive damages as well as counsel fees, but gives no statutory justification for an award of compensatory damages. Nonetheless, the plaintiff has not shown any compensatory damages to this court. While this court can sympathize with her claim of humiliation, no damages have been shown as a result of that humiliation. The purpose of imposing a violation of statute is to penalize the violator and deter others from such conduct. That is exactly what this court is imposing here, as well as injunctive relief to comply with the New York Civil Rights Law, Human Rights Law and the Americans with Disabilities Act.”

The court's language about it being anticipated that either the state or city agency would handle discrimination cases may mean the court felt this should have been true here, with the result that the matter could have been resolved without significant expense to the plaintiff, or derivatively, the defendant. It is not clear why the state and city agencies did not make appearances before the court, but such agencies often prefer to handle complaints directly rather than joining in litigation an individual determines to pursue with private counsel. Such appearances carry some risk to the agencies in that plaintiff's counsel may take positions with which the agencies do not agree. It is also not described what efforts Degregorio may have made to involve these agencies, or the Department of Justice, prior to pursuing the claims with her own lawyer.

In a later motion, Degregorio moved for an award of attorney’s fees of $82,297.75 and costs of $2,034.74. The denial of this motion was the issue on which Degregorio based her appeal.

Appellate Court Considers Attorney’s Fees

The New York appellate court noted that under the ADA, a “court, in its discretion, may allow the prevailing party … a reasonable attorney’s fee as part of the cots.” 42 U.S.C. 2000a-3(b). The New York City Human Rights law (Administrative Code 8-502(f)) also allows a court the discretion to award a prevailing party costs and reasonable attorney’s fees. The appellate court concluded that Degregorio had indeed prevailed.

Nevertheless, the appellate court cited a 1992 U.S. Supreme Court case, Farrar v. Hobby, 506 U.S. 103 (1993), which had held that in some circumstances a plaintiff who formally prevails “should receive no attorney’s fees at all.” The Second Circuit, four years after Farrar, had elaborated by saying that “fee awards are not appropriate where, having failed to capture compensatory or punitive damages, a plaintiff wins only ‘the moral satisfaction of knowing that a … court concluded that [their] rights had been violated.'” Pino v. Locascio, 101 F.3d 235 (2d Cir. 1996). New York is in the Second Circuit. Following these precedents, the appellate court affirmed the trial court's denial of the motion for attorney's fees.

Unfortunately, establishing compensatory damages may have been difficult since the potential patrons presumably moved to another restaurant or went home. The trial court had noted that it had asked Degregorio’s attorney before trial “whether he was presenting any expert testimony to prove his claim of extreme emotional distress as a result of the alleged violation, to which plaintiff’s counsel responded that he would not be offering any expert testimony.” If there had been evidence of this sort (though such an expert would have come with additional costs), attorney’s fees might have been awarded.

But did the plaintiff only win moral satisfaction? Was not the injunctive relief requiring that the defendant comply with the New York Civil Rights Law, Human Rights Law and the Americans with Disabilities Act, itself a significant result? In Farrar v. Hobby, there was no “enforceable judgment on the merits,” but here there was in that an injunction applied to the defendant’s future behavior, modifying that behavior “in a way that directly benefits the plaintiff.” It may thus be argued that Farrar could be interpreted more favorably to Degregorio’s claim for costs and fees.

Conclusion

The case demonstrates that in certain circumstances, a victory on a civil rights issue can result in bragging rights but little else. This is unfortunate since there obviously was discrimination here, apparently unintentional yet quite real. Perhaps Degregorio would have been better off pursuing the matter administratively through one of the civil rights agencies with authority to handle such issues, but it is always easier to make these calls from hindsight.

Degregorio v. Richmond Italian Paviolion, 2011 WL 6440491 (2011)

Thanks to Patty Dobbs Gross for her input on this piece.

Police Dog Left 13½ Hours in Hot Car: Is Hostility Towards Sheriff Joe Making Everyone Forget Bandit’s Horrible Death?

A federal district court has denied a defense motion for summary judgment in a case where a Chandler police officer sued the sheriff of Maricopa County, Arizona, Joseph Arpaio, as well as Arpaio’s wife, for false arrest, malicious prosecution, and violation of equal protection rights. The police officer, Thomas Lovejoy, had been prosecuted in 2008 under Arizona’s animal cruelty statute for leaving his police dog in his assigned SUV for approximately 13½ hours, during which time the dog died. The federal court declined to grant a motion for summary judgment by the Arpaios on the claims of false arrest and malicious prosecution, but granted the motion as to the equal protection claim.

Lovejoy and Bandit

Thomas Lovejoy was the supervising sergeant of the Chandler, Arizona, Police K-9 unit. Lovejoy was paired with a Belgian Malinois named Bandit, who was provided with a special kennel in the back of Lovejoy’s police SUV. Their regular shift was from 6 p.m. to 4 a.m., Monday through Thursday. On Friday, August 10, 2007, Lovejoy worked an extra-duty shift from 8:30 a.m. until about noon. That night he had trouble sleeping because he did not feel well.

Around 2 a.m. on Saturday, August 11, Lovejoy’s lieutenant called Lovejoy and told him of a possible sighting of a serial rapist and asked him to report for duty. Lovejoy agreed but did not get out of bed and went back to sleep. An hour later, the lieutenant called again. Lovejoy got up this time, put Bandit in the SUV, and began driving toward the scene. The lieutenant spoke to Lovejoy by cell phone and told him to go back home. Lovejoy did so, putting Bandit in his backyard kennel.

The court says that Lovejoy had only slept six and a half hours over the previous two days. This was apparently a figure of Lovejoy’s own calculation. If he went off duty on Friday morning at 4 a.m., he could have had several hours of sleep then. He was also off duty on Friday from about noon until the call at 2 a.m. on Saturday, a period of 14 hours, but apparently only slept a few hours in this period.

Lovejoy volunteered for an extra-duty traffic control shift beginning at 6 a.m. Saturday. He did not need to bring Bandit but did so in case the serial rapist was spotted again. The shift ended at 9 a.m. and Lovejoy drove home, leaving Bandit in the kennel inside the SUV. He did various things that day, including helping his stepson with a minor car accident, shopping with one of his daughters, and going out to dinner with his wife. He used his personal vehicle and continued to forget about Bandit. It does not appear that he used the time to catch up on the sleep which he felt that work had deprived him of.

At 10:30 at night Lovejoy opened his SUV to prepare for another extra-duty shift and discovered Bandit dead in his kennel. It is worth emphasizing that Lovejoy had left the dog in the car for over 13 hours, a very long time for any dog to remain unchecked, no matter what its location. Lovejoy called a fellow Chandler Police Officer, Ron Emary, for help. Chandler Police Department Commander Joseph Gaylord soon arrived, photographed the scene, cleaned up Bandit’s kennel, and took the dog’s body to an animal hospital for cremation.

It is to be noted that despite Lovejoy’s claims of having little sleep, in the time period described by the court he volunteered for two extra assignments. This is not atypical of police department operations, and generally involves significantly higher pay during the special detail assignment, often 1.5 to 2.5 times the usual rate of pay.

Maricopa County Sheriff Investigates

On Tuesday, August 14, the Maricopa County Sheriff’s Office issued a “news brief” on Bandit’s death, stating in part:

“Yesterday, through the many phone calls and inquiries of citizens, it came to the attention of Maricopa County Sheriff Joe Arpaio about the death of a City of Chandler police dog. Citizens flooded the Sheriff's Animal Abuse Hotline ... with calls and comments about the death of the police dog. Upon receiving the information, Sheriff Arpaio ordered his Animal Abuse Investigators to look into the incident.”

The incident was a potential crime under Arizona’s animal cruelty statute which makes it a misdemeanor to “intentionally, knowingly or recklessly leave … an animal unattended and confined in a motor vehicle [if] physical injury to or death of the animal is likely to result.” ARS 13-2910

The Sheriff’s Office had jurisdiction because Lovejoy’s home was in an unincorporated County island. The matter was investigated by Detective Robert Simonson in the Sheriff’s Animal Cruelty Unit. Simonson produced a 16-page report. He found no evidence that Simonson recognized he was leaving Bandit in the SUV or that he did so intentionally. This seems likely, given that when Lovejoy called his fellow officer, Emary, he could do no more than babble.

An email indicates that there was probably a meeting on September 4 in which Simonson and his superiors presented their results to Arpaio, though Arpaio could not remember the meeting. On September 5, Simonson recommended that charges be filed, adding the following paragraph to his report:

“09/05/2007 Upon reviewing all of the evidence and interviews pertaining to this case, the Maricopa County Sheriff's Office Animal Crimes Division believes there is sufficient cause to show that Sgt. Thomas Lovejoy of the Chandler Police Department should be charged with Arizona Revised Statute 13–2910.A.7 Animal Cruelty: Recklessly leaving an animal unattended and confined in a motor vehicle and death of the animal occurred. Based on his extensive canine training and 4.5 years of experience as a canine handler along with his statements that he placed the canine into his vehicle prior to the start of his extra duty job on the morning of August 11th, 2007 and did not discover the animal until approximately 13.5 hours later, Sgt. Thomas Lovejoy will be charged with one count of ARS 13-2910.A.7 a Class 1 Misdemeanor.”

Recklessness Issue

The federal district court in which Lovejoy sued Arpaio noted that “recklessly” is specifically defined in the Arizona penal code:

“‘Recklessly’ means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.” ARS 13-105(10)(c).

In an affidavit submitted to the federal court, Simonson elaborated on why he thought that recklessness was involved:

“In determining that probable cause existed, the totality of the circumstances included the fact that Sgt. Lovejoy was mentally and physically exhausted such that he was unable to report to a call-out by a supervisor yet, a few hours later, chose to report to an extra-duty traffic control assignment rather than call in sick.

“I also considered that Sgt. Lovejoy chose to take Bandit with him on the extra-duty assignment and placed him in his assigned patrol car despite it not being Sgt. Lovejoy's typical practice to take Bandit to such extra assignments.

“I also considered that Chandler Police Department rules and regulations did not require Sgt. Lovejoy to take his assigned canine to an extra-duty traffic control assignment.”

In fact, in the period involved, Lovejoy had volunteered twice for extra assignments, despite complaining of a lack of sleep.

Arpaio’s Press Conference

While Lovejoy was driving to the Sheriff’s station in downtown Phoenix at the request of Simonson, Sheriff Arpaio held a press conference announcing the arrest. Lovejoy learned about this from a reporter’s call on his cell while he was still driving. Lovejoy was processed without handcuffs and released without being asked to post bail.

Most states take a dim view of releasing arrest information before an arrest is actually made.

Arpaio’s news release of September 5 acknowledged that Bandit’s death was not the result of an intentional act on Lovejoy’s part, but it was criminal because it was reckless.

Arizona Association of Chiefs of Police

On September 12, 2007, Arpaio’s office reacted to criticism coming from police groups:

“The August 11, 2007 death of Chandler police dog, Bandit, and the subsequent arrest of his partner and caretaker, Chandler Sgt. Thomas Lovejoy, has sparked such controversy that today, the Arizona Association of Chiefs of Police, at the urging of some police unions, issued a ‘resolution’ decrying Sheriff Arpaio's decision to book the officer into jail.

“The Sheriff's Office believes that the ‘resolution’ is an attempt to shift the public's focus away from the Chandler officer by blaming Sheriff Arpaio for overreacting to the situation. Arpaio, however, remains steadfast about his policy to arrest and book into jail anyone found abusing or neglecting animals.

“Some misunderstandings about the facts of the case are apparent in news articles and public comment. They include the following:
* * *
“Though Arpaio made the decision to arrest and book Lovejoy into jail, it was conducted in such a way to protect the officer....
* * *
“Sheriff Arpaio is in Massachusetts today ... but he is aware of the Arizona Police Chiefs Association's actions. He is outraged by their ‘resolution’ and their attempt to make him the bad guy.”

Arpaio later disavowed the portion of this press release suggesting that he had made a decision to arrest and book Lovejoy into jail. He did acknowledge that he had a policy to book all animal cruelty arrestees into jail, but said he had not made the decision to arrest Lovejoy.

Lovejoy’s Attorney

Lovejoy hired attorney Robert Kavanagh to defend him. Kavanagh interviewed Simonson, eliciting responses indicating that Simonson saw Lovejoy as reckless, but that he simply forgot that Bandit was in the back of the car. Part of the interview includes the following colloquy (with some typographical corrections):

Q. Okay. All right. As the investigator do you feel this case was a matter of negligence or recklessness?

A. I feel that based on his statement that the placed the dog in the vehicle, that he has training more training than an average person, in terms of handling his animal, that I believe that he recklessly left the dog in the vehicle.

Q. Okay so basically the fact that he put the dog in there and he has training?

A. It's his partner. It's my belief that more so than an average citizen and-and we-and we've charged average citizens with this crime. So I'm feeling that he should have some expectation knowing where his partner's at.
* * *
Q. Okay what type of cases do you charge the average citizen that leave their dogs in the car?

A. We have one just previous [to] this I guess it would be probably a year ago now, where a female left a dog in the car to go inside and go shopping in a mall.
* * *
Q. Okay I understand [the shopping mall case], all right but that's different than this case?

A. Yes.

Q. Where the guy leaves the dog in the car and not even remembering him there and goes in with no intent to go back because he had … would have no reason to go back [']cause he doesn't think the dog's there?

A. Correct.
* * *
Q. Okay, all right so I'm just trying … (Indiscernible) I don't want to beat a dead horse but the fact that Tom's had canine training and the dog was his partner are the two main reasons why you felt there was sufficient cause to charge him?

A. Yes.

Unfortunately, the federal district court’s order does not go into Lovejoy’s canine training. If the Chandler police were typical of police departments in the southern United States, there would have been considerable emphasis on keeping dogs cool and watered. It would often be repeated that failure to do so would be the officer’s fault. Although such an emphasis might not imply criminal prosecution, an officer would certainly understand that failure to protect a dog would likely result in permanent suspension from canine work, if not police work altogether.

Preparation in the County Attorney’s Office

Andrew Thomas, Maricopa County Attorney, assigned the case to Leonard Ruiz, chief of the Trial division, while Anthony Church, who specializes in animal cruelty cases, was told to prepare the case for trial. Church determined that the case against Lovejoy was weak. He sensed that Lovejoy “cared very much about the animal.”

Church and Ruiz requested an “incident review,” under which a board of senior attorneys would evaluate whether a case should go forward. The two attorneys noted that “recklessness requires that the person actual be ‘aware’ of the risk being created by his conduct.” (Citing In re William G., 192 Ariz. 208, 963 P.2d 287)

Another Deputy County Attorney researched the issue of whether awareness of a risk could entail forgetfulness and concluded that it could not “be argued that a person who truly forgot an animal [was] in a vehicle consciously disregarded a known risk,” making the “facts appear legally insufficient for a conviction.”

Yet another attorney in the office reached a similar conclusion:

“Lovejoy knew the dog was in the car because he placed him there, but the evidence shows he completely forgot about him. In other words, although Lovejoy was no doubt aware of the risk of leaving a dog in a hot car that long, he did not consciously disregard that risk. He simply forgot. That may be negligent, but it is probably not criminally reckless….

“Lovejoy should have realized that he was sleep-deprived and might forget about the dog. However, police officers working graveyard shifts, swing shifts, off-duty jobs, and getting called out at all hours, are commonly sleep deprived and this might be considered normal for a police officer. In other words, loading the dog in the car under the circumstances probably did not create a substantial risk of harm constituting a gross 'flagrant and extreme' deviation from the conduct of a police officer or K9 officer. Leaving him in the car, of course, would create a substantial risk of harm constituting a gross deviation from the conduct of a K9 officer, but we lack the ‘conscious disregard’ of such a risk.”

A Second Prosecutor Assigned

The incident interview request of Church and Ruiz was turned down, and they refused to continue prosecuting Lovejoy, so the County Attorney reassigned the case to another Deputy County Attorney, Lisa Aubuchon. When asked in a deposition how she expected to establish recklessness, she stated:

“Well, generally I was looking at it as Mr. Lovejoy had made decisions, had made—taken—he had made choices throughout to focus on overtime, to work other types of jobs instead of getting sleep, for example, so that he would be fresh and ready to go on—on his job. And I knew that one of his main jobs was to take care of Bandit and to make sure that Bandit, you know, was—was safe, had water, had food, was not being placed in a car to bake to death. He had responsibilities to Bandit, and he chose to go out and do other off-duty jobs instead of getting rest and getting sleep. He chose to go shopping. He chose to go out to dinner. He chose to go out to lunch instead of choosing to take care of Bandit.”

She also testified that she felt no pressure from anyone to continue pursuing Lovejoy. This lack of pressure presents a problem for Lovejoy's case, as will be described later.

Lovejoy’s Trial

The case went to a bench trial before a Justice of the Peace on August 15, 2008. After the state’s case was presented by Aubuchon, Lovejoy’s lawyer moved for a directed verdict, which the Justice denied “at the time.” After the defense was presented, the judge found Lovejoy not guilty because he didn’t believe the situation amounted to recklessness under the legal standard in Arizona.

The federal district court, analyzing the record of the bench trial, describes the Justice’s denial of the directed verdict motion “at this time” as being made “out of an abundance of caution,” and concludes that after the presentation of the defense, the Justice “ultimately granted Lovejoy’s motion.” The court argues that “when the Justice of the Peace acquitted Lovejoy, he framed his explanation in terms of the failure of the State’s evidence to satisfy the recklessness standard.” This gets around Arpaio’s argument that the federal district court could not “adjudicate the constitutionality of the arrest and prosecution because the state criminal court already did so.”

It is to be noted that Lovejoy may have been lucky to avoid a jury trial. Arpaio may be unpopular in Phoenix, but dogs aren’t.

Lovejoy Sues

Filing in federal court, Lovejoy claimed he had lost income and earnings, presumably having lost his K-9 supervisory responsibilities, as well as perhaps being allowed less overtime, though the actual reason for loss of income does not receive elaboration. He developed stress symptoms and his wife’s business suffered from the negative publicity. He also claimed $25,000 in legal fees. Lovejoy not only sued Arpaio, but Arpaio’s wife, Ava, an aspect of the case that the federal district court did not mention further.

Arpaio moved for summary judgment, arguing in effect that Lovejoy lacked enough evidence from which a reasonable jury could find him liable in his individual or official capacity for the alleged misconduct.

The court begins its analysis by stating the “the record currently before the Court shows that probable cause to arrest and prosecute did not exist, and no reasonable person could think it did.” The court concludes that on the record, “it was unconstitutional to arrest Lovejoy for animal cruelty.” Further:

“Sufficient evidence exists from which a reasonable jury could conclude that Arpaio, in his supervisory role, acted to ensure that Lovejoy would be charged, or culpably failed to act to prevent others from bringing such charges.”

The Problem of the Prosecutor's Independence

The court recognizes the problem faced by Lovejoy's attorney in obtaining a high award because most of the damages Lovejoy was alleging flowed from the trial, not the arrest, and the decision to go to trial, at least initially, appears to have been made independently by the prosecutor, who was immune from suit.

The court then volunteers that Lovejoy may be able to “get around the prosecutor”—i.e., the problem of recovering damages for the prosecution from Arpaio—by establishing (1) the prosecutor was pressured or caused by the investigating officers to act contrary to his or her independent judgment, (2) the police officers knowingly presented false information to the prosecutor, (3) the prosecutor was nothing but a rubber stamp for his investigative staff or the police, (4) retaliatory animus on the part of the police (which would be the Sheriff here), and even (5) lack of probable cause.

The court argues that “rational jurors could infer that [Andrew] Thomas and Aubuchon were pressured or caused by the investigating officers to act contrary to their independent judgment.” Further:

“[A] rational jury could conclude that, even in the absence of external pressure, Thomas and Aubuchon ‘rubber stamped’ Arpaio's alleged decision—on in other words, that Thomas and Aubuchon simply did not exercise independent judgment. Evidence rationally supporting such a conclusion includes Arpaio's potential ‘comment’ to Thomas [a possible discussion between the Sheriff and the the County Attorney], Thomas's choice to deny Church and Ruiz's incident review request, and Aubuchon's complete acceptance of the Sheriff's Office's indefensible statutory interpretation.”

This is a considerable amount of judicial speculation on the prosecutor's comment that she did not feel pressured to prosecute and virtually lays out a trial strategy for Kavanagh. The court concedes that “if a jury concludes that Thomas and Aubuchon exercised independent judgment, then Arapaio could only be liable for damages incurred between the arrest and the criminal complaint.”

Equal Protection Argument Rejected

The one argument that didn’t fly with the district court was one of equal protection because Lovejoy claimed that “at least four other police dogs died under suspicious circumstances” where their handlers were never investigated, disciplined, or prosecuted. Presumably these four K-9 deaths all occurred in Maricopa County to be relevant to the argument. One of those cases is described:

“In March 2007, a Phoenix Police Department officer left his assigned dog, Top, in his truck for about three hours while he attended to administrative tasks at the Department. The officer left the truck's engine running but forgot to turn on the air conditioning. Top did not die in the truck, but suffered from heat stroke and needed to be euthanized. A Phoenix Police internal investigation determined that the incident was a mistake. A Phoenix Police Commander spoke with Arpaio about the results of the investigation and Arpaio agreed that the Phoenix Police Department could handle it internally. The Sheriff's Office did not investigate.”

It is not clear the Sheriff could have investigated this earlier case. The only reason he could do so in the Lovejoy matter was that the dog died in an unincorporated area of Maricopa Count. Arpaio’s motion for summary judgment on the equal protection issue was granted. The case could proceed on other issues.

Other Cases

That other police departments take canine deaths seriously is indicated by an arrest in Geneva, Alabama, where an officer tried to hide the death of his police dog, trained in narcotics detection and tracking.  An informant led the police to the dog’s remains. The officer was charged with killing his K-9, but unlike Lovejoy, he had to post bail of $27,500. In October 2012, the officer pled guilty to animal cruelty and perjury, both at the misdemeanor level. According to a news report, he also agreed to pay the city $7,500 in restitution. 

In April 2010, a New Orleans police officer, Jason Lewis, was charged with aggravated cruelty to animals for leaving his K-9 partner, Primo, unattended in a police vehicle and the dog likely died from heat stroke. The dog ripped the seats to shreds in its desperation and was taken to a veterinary office with a body temperature of 109.8 before dying. Lewis’s attorney said that the vehicle in which the dog died was supposed to be designed for leaving an animal in it for a long time. The NOPD had suspended the K-9 unit after a critical report from the Justice Department, but reinstated it after federal inspectors observed seven hours of testing, according to a news report.

An officer of the Mount Holly, New Jersey, Police Department was charged when her canine partner died after being left in a police car for about two hours. The air conditioner had been left on, but had stopped running. The department stated that the dog was worth about $100,000. An Alpine, California, K-9 officer was reported to have left a dog unattended in a car for several hours, during which it died.

In England, two dogs died in a police car after being left unattended for about six hours. A press report said that the officer responsible was deeply stricken by the incident and may have attempted suicide. The report said the officer could face charges once an RSPCA (The Royal Society for the Prevention of Cruelty to Animals) inquiry was completed.

On the same day that Lovejoy was acquitted, Chandler police recommended that a man who left his puggle in a car for “at least 35 minutes,” with the windows cracked, be charged with one count of cruelty to animals. (One can't help but wonder if some members of the Chandler Police Department weren't trying to send a message to Lovejoy. If so, they must have been surprised that the local press largely failed to make a connection.) A Memphis couple was charged after leaving their pit bull in a hot car for four hours. Two women who left two dogs in a car for a little over an hour, with the windows slightly cracked, faced charges, when one of the dogs died, according to the Orlando Sentinel.

Conclusion

Although the interpretation of the recklessness issue by the federal district court may be correct as to the decision to prosecute, not remembering where a dog is or checking on it for over 13 hours demonstrates a high degree of negligence. The Chandler Police Department should assure that its officers are not allowed to get overtime at a level that either police dogs or other parties are at risk. An officer who cannot control his responsibilities should not be given the responsibility of a police dog, much less the responsibility of supervising others with police dogs. Should a mother who leaves a baby in a hot car while shopping be prosecuted when the baby dies? Perhaps not in every situation, but a youth authority would be justified in refusing to allow such a person to adopt or foster children. The same logic should apply here.

As discussed in Police and Military Dogs, there is some research regarding the benefits of having police dogs become members of officers' families. This is one case where such an approach may not have worked. How many dog owners forget where their dogs are for 13 hours? Would a mother who left her child unattended in a car for that long receive a pass from a prosecutor?

Perhaps it was is inevitable that the Lovejoy case became so entangled with the attitudes and politics of Sheriff Arpaio that local press coverage has seldom considered what action against Lovejoy was appropriate. While Arpaio’s defense may cost taxpayers a considerable amount of money, Lovejoy’s carelessness deprived his department, and the taxpayers, of a dog that had presumably received extensive and expensive training, and possibly resulted in a community less safe without Bandit.

It has also not been adequately considered whether the Chandler Police Department might share in some of the blame. The Department should have protocols to assure that any officer, whether a canine handler or not, is healthy and kept from reaching a level of exhaustion that endangers his or her charges and others. The handler and the department should have a contract that describes the responsibilities of each, which should include a zero tolerance for neglect of a valuable dog. The Department’s subsequent actions should have also been part of the public inquiry, but the press hostility towards Arpaio became the news focus and everyone seems to have forgotten Bandit.

The authors inquired of ten national organizations that follow animal abuse as to whether any statistics were available as to heat related deaths of dogs in cars, or of police dogs in cars. An official of one group replied that “for every case that is reported, there are likely countless that are not reported.” We agree. Even police dog deaths in hot cars are probably going to be kept from the public if possible. That there were four in the Phoenix area indicates the problem may be much greater than has been recognized.

Information on child deaths in hot cars is available, however. One study of the demographics of deaths of children in cars found that an average of 29 died this way from 1998 to 2002, but 42 died in 2003. Catherine McLareen, Jan Null, and James Quinn (2005). Heat Stress from Enclosed Vehicles: Moderate Ambient Temperatures Cause Significant Temperature Rise in Enclosed Vehicles. Pediatrics, 116(1), e109-e112. A more recent study indicates that 49 children died from hyperthermia in cars in 2010, and 30 in 2011. An article in the Journal of the Louisiana State Medical Society described how temperatures can exceed 125° in only 20 minutes, and 140° in 40 minutes. Another study found that even on cool days, temperatures can reach a level where children can die.

Death in a hot police car is an excruciatingly painful way to die, for a dog, a baby, or anyone.

Lovejoy v. Arpaio, 2011 WL 6759552 (D. Az. 2011).

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

Additional Notes. The matter was settled in April, according to the Arizona Republic, with Maricopa County agreeing to pay Lovejoy $175,000 and cover his legal costs of $600,000.  The paper reported that "Maricopa County's risk-management department determined the settlement was a 'palatable amount.'"

One does not think of these cases as involving more than two or three dogs at most, but the Houston Chronicle reported on December 15, 2011, that 14 bomb dogs were killed after being confined in a truck overnight waiting to be sent to Afghanistan. American K-9 Detection Services, according to the newspaper, is suing Indian Creek Enterprises and Live Animal Transportation Services for negligence in the loss of the German shepherds and Belgian Malinois. The paper reported that an effort to settle out of court for $1.3 million was rejected.

On July 11, 2012, the Arizona Republic reported that an Arizona Department of Public Safety officer responding to an emergency realized that he had left his K-9 in a different car.  He returned in time to get the dog to a veterinarian, though the dog was described as being in a life-threatening condition.  KHOU, a Houston radio station, reported online on August 1, 2012, that several officers in the Houston area have been prosecuted for animal cruelty for car deaths of their canine partners.  In one case, an officer may have neglected to give the dog heartworm medication, making it more vulnerable in a hot car.

Examiner.com reported on August 2, 2012, that the sheriff of Mercer County, Ohio, has suspended his K-9 program after losing two dogs in three years, the most recent one being a heat death after his handler left the dog in a patrol car while he was working on a report. The Camden, New Jersey, Police Department lost a police dog to heat in August 2012, which, according to a local news site, may have been due to the air conditioner in the car malfunctioning.Two dogs left overnight in a police car near San Antonio died, resulting in the suspension of a Bexar County Sheriff's deputy.

On August 22, 2013, the Alamogordo Daily News reported that ten dogs being transported to the Fort Bliss training center died when the air conditioning in the transport vehicle malfunctioned. Dogs can die quickly in the heat, but they will often become quite agitated during the process, so it is not clear why this was not noticed if there was always someone in the front of the vehicle. 

On May 28, 2014,6-ABC-WATE.com reported that a Department of Corrections dog died in its handler's SUV after being left for seven hours.  Outside temperatures reached 98 degrees at the time.  The ABC website reported that prosecutors declined to file animal cruelty charges against the handler.