Tuesday, October 21, 2014

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

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

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

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

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

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

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

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

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

Pizzeria Ejects Patron with Service Dog

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court then makes a highly questionable analogy:

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

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

Courthouse Staff Delays Admission of Witness with Service Dog

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

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

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

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

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

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

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

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

Former Police Officer with Service Dog Barred from Neighborhood Watch Meeting

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Proliferation of Service Animal Types and Bogus Claims Make Enforcement Difficult

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

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

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

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

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

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


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

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


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

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

Thanks to Leigh Anne Novak for suggestions.

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