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

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

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

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

The Riverside Sheriff’s Department Canine Team

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

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

The Trail from Mason’s House

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

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

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

Station Identification

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

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

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

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

Jackson’s Description of Throwing a Woman from a Car

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

Second Station Identification

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

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

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

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

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

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

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

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

At a later point in the opinion, the Court's description of these events differs somewhat, saying that "Webb lost sight of Maggie when the dog turned the corner to walk down Jackson's row."  Also, instead of saying that Maggie's paws were on the bench and her head next to Jackson's chest, the court in its second description says that when Webb reached the row where Jackson was seated, "she saw Maggie jump into Jackson's lap."  The inconsistency of these descriptions was not explained.

The defense objected that “the presence of the two detectives in the locker room transformed the Orange Street trailing into a hybrid of a trailing and a scent lineup,” using the terminology employed by Professor Andrew Taslitz in his famous Hastings Law Review Article, “Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup.”  The California Supreme Court rejected the argument:

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

This defective logic misses the fact that there is an entire history of distinguishing between tracking or trailing and interacting with individuals who might be found at the end of the trail, a logic that has infused the scientific development of scent lineups and which more astute courts have seen as meaning that a dog’s interaction with an individual at the end of a trail can be influenced by factors other than an identity of scent between the individual at that point and the odor with which the trailing procedure began. Dogs, for instance, can distinguish emotional expressions of human faces, and it is likely that someone like Jackson would have a different type of expression on his face than would officers near him.  See Muller et al. (2015).  Dogs Can Discriminate Emotional Expressions of Human Faces.  Current Biology, 25(5), 601-605; Cuaya et al. (2016). OurFaces in the Dog's Brain: Functional Imaging Reveals Temporal Cortex Activation during Perception in Human Faces. PLoS/One, 11(3), e0149431.

While one cannot control many variables in a real-world trailing or tracking situation, it was the realization that variables could be defined in scent identifications, and thus controlled, that led to the scientific tradition of scent identification procedures, specifically lineups, that have been refined by Adee Schoon, Tadeusz Jezierski, and recently by Barbara Ferry.  (See Tadeusz Jezierski, Scent Lineups: Variables in Procedures and Statistical Verification, chapter 19 in Canine Olfaction Science and Law.)  

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

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

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

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

Ninhydrin

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

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

Pre-Trial Motion for Kelly Hearing on Canine Evidence

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

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

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

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

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

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

Harvey’s Station Identification Procedures in February 2005

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

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

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

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

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

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

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

Q. What does Dakota usually do?

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

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

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

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

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

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

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

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

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

Testimony of Dr. Lawrence Myers

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

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

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

Myers also indicated that a scent lineup where only one of the individuals in the lineup was in a jumpsuit and handcuffs was “not a very good lineup” because the situation involved “a cue that’s hard to ignore.”  In rebuttal, the prosecution asked Webb if dogs are “colorblind,” to which Webb said they were.  This is not entirely true, though dogs have fewer color-sensitive cone photoreceptors than humans do.  See Miller, Wyman (2001). Vision in Animals-What Do Dogs and Cats See? PP. 27-8 in the 25th Annual Waltham/OSU Symposium: Small Animal Ophthalmology.  In any case, a dog would not need to distinguish ethnicity by sight, since there are odor markers, volatile organic compounds, that likely allow them to distinguish members of different races.  See Prokop-Prigge et al. (2015).  Ethnic/racial and Genetic Influences on Cerumen Odorant Profiles. Journal of Chemical Ecology, 41, 67-74; Prokop-Prigge et al. (2016). The Effect of Ethnicity on Human Axillary Odorant Production. Journal of Chemical Ecology, 42, 33-39.

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

Conclusion

Canine procedures occurred at least seven times in this case:

1. Trailings of Webb and Maggie May at Mason’s house the morning of June 22, 2001. Result: first trailing went to backyard of residence where suspect was living; second went elsewhere.
2. The station identification of Webb and Maggie later the same day at the Spruce Street police station. Result: no alert, dog stopped trailing at suspect but may have been confused by air conditioning.
3. A canine search of the area where Jackson thought he may have thrown a woman from his car. Result: no body or other evidence found.
4. The station identification of Webb and Maggie on June 25, 2001, at the Orange Street police station. Result: Court provided two descriptions of the dog interacting with Jackson, one of which indicated an alert. Since dog was scented to envelope that had been sprayed with ninhydrin, subsequent verification of effects of ninhydrin were undertaken.
5. Trooper Lowry’s ninhydrin-related trailing test using a dog (pre-trial but otherwise undated). Result: ninhydrin found not to interfere with dog's abilities.
6. Dr. Harvey’s test with three ninhydrin-related trailing tests (also pre-trial), using three dogs. Result: same as 5.
7. Dr. Harvey’s station identification of Harvey and two dogs in February 2005 (post-trial, between two sentencing trials).  Result: handler claimed identification occurred by Court's description only indicated interest. 

In sum, there were three identification procedures, two near the time of the crime and one (involving two dogs) four years after the crime.  Only one of the earlier identifications may have resulted in an alert.  In none of these procedures were there adequate scientific protocols and in only one station identification was there even arguably a trained final alert. Only in the first procedure, trailing from Mason’s house, was valid evidence produced that should have been admissible, and that evidence was of the route that the perpetrator may have followed upon leaving Mason’s house, and where the perpetrator left the purse taken from Mason.  Even in that case, a repeat of the trailing from the garbage can did not confirm the first result so arguably even these events should have been excluded as prejudicial.  

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

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

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

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

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

A station identification is an artificial trailing situation in which a dog’s ability to follow a scent taken from a crime scene is verified in an environment that has nothing to do with that crime. Unlike the more sophisticated European scent lineups, the dog is not given a choice between scents of numerous individuals of similar economic and ethnic backgrounds, may in fact be following a trail of someone whose scent is closer to that obtained from the crime scene than other scents in the area of the station, may only have one choice of individual to choose from at the end of the trail, and may be allowed to interact with the suspect from a distance away, thereby possibly eliciting a response that can be taken as, or mistaken for, an alert. The procedure makes no more sense than would replacing scent lineups with a procedure by which a human witness would be asked to walk through a police station and identify an individual as the perpetrator from among all the people in the station at the time, with the possibility that the suspect is behind bars and in an orange suit.

Station identifications also encourage cueing, particularly when the target individual is easily distinguishable from others in the vicinity, such as by being handcuffed or in prison attire or both as in this case. It is not double-blind to third parties since the suspect is under arrest and individuals holding him may have to be advised that the station identification being conducted, and even if they are not told about it in advance, they are likely to understand what is happening and that it is intended as an identification.  Scent identifications are also seriously flawed because they do not involve antiseptic protocols as are required in more rigorous European procedures.  The station identification procedure has never been subjected to rigorous scientific analysis precisely because it is itself not capable of rigor, and no doubt because it is largely confined to a few trainers in one state. 

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

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

Does a Facility Dog that Accompanies a Child Witness to the Stand Have to Be Trained as a Service Dog? A Growing Number of State Legislatures Say Yes

The Only Witness for the Defense

There is no doubt that service dogs learn skills that are useful when it comes to designing a training program for a facility dog whose function is to remain calm at the side or feet of a child or vulnerable witness testifying in a criminal prosecution, often facing a defendant accused of having abused the witness.  Many service dogs are trained to remain close to their handlers while they are working, such as guide dogs wearing a halter.  Psychiatric service dogs may be trained to press against the side or back of a person with PTSD when they sense the person's anxiety level rising.  Yet service dogs are generally adapted to a single master, with whom they may spend most of their lives.  Therapy dogs are taught to remain calm when visiting a series of patients in a hospital or residents in a  nursing home, often sitting before them or at their sides for minutes, perhaps an hour on a home visit. Facility dogs move from witness to witness as needed.  Even many pets are comfortable with remaining beside a master or member of a family for a long period of time, often reducing someone's anxieties without any training at all. Does there need to be a single type of training, administered by trainers accepted into a single national training organization, to create a facility dog?  I do not believe so, but many state legislatures say I am wrong. 

I have updated my online article on the website of the Animal Legal and Historical Center of the School of Law of Michigan State University.  I have completed this update only three months after the last revision of the article.  I felt this was necessary because there have been four new appellate decisions and two new statutes and after three months the article was already out of date.  Even as this updated version was being prepared there was an additional case out of Ohio that I will describe at the end of this blog, but which will not be added to the ALHC article until the next revision, hopefully (for the sake of my other commitments and for the sake of the ALHC staff) towards the end of the year. 

I have also used this revision of the article to add a table concerning the statutes that have been passed, now by a total of six states: Arizona, Arkansas, Florida, Hawaii, Illinois, and Oklahoma.  Eight states have had decisional law on dogs accompanying witnesses:  California, Connecticut, Michigan, New York, Ohio, Tennessee, Texas, and Washington, and several of these states have more than one decision. 

Cases and Statutes Increasingly at Odds

What is particularly dramatic is how cases and statutes regarding facility dogs go in increasingly different directions.  Of the eight states with decisions, all trial judges have made sure that the dog would behave and threatened sanctions should this not be the case, but none rejected a dog because it was not trained by or registered with any national organization.  Most opinions gave minimal attention to the training a dog had received, and often used terms like service, therapy, and comfort interchangeably in describing the dog that accompanied a witness. 

In contrast, of six states with statutes, two (Hawaii and Illinois) specify that the dog must be a graduate of a member of Assistance Dogs International, a third (Arkansas) says that the dog must be trained by an ADI or similar nonprofit organization without making clear what if anything would be considered similar to ADI, and a fourth (Arizona) does not refer to ADI specifically but lays out an organizational requirement in such a way that only ADI would likely be able to satisfy the test.  Only two states (Florida and Oklahoma) have statutes broad enough to include therapy dogs such as might be trained by Pet Partners, Therapy Dogs International, or Therapy Dogs Inc. 

Thus, while courts have used a case-by-case, dog-by-dog approach, legislatures are increasingly creating a monopoly for Assistance Dogs International.  Defense counsel in states other than Arizona, Arkansas, Hawaii, or Illinois now have a possible argument that ADI training should be required and that any dog, whether a therapy dog or dog that has satisfied AKC public access tests, should not be allowed into a courtroom because of the possibility of disruption. However, as I discuss ad nauseam in my article, a disturbing number of defense attorneys in these cases have been asleep at the wheel during trial proceedings and only woke up to object when it was often too late at the appellate level.  The following table lists the states that have either case or statutory law on the subject.  It is to be noted that only the states with statutes have organizational requirements. 

States with Court Decisions or Statutes for Facility Dogs: Training Described or Organization Affiliation Required
State	Case Law	Statute
Arizona		Assistance dog member of ADI-like organization
Arkansas		Trained by ADI or similar nonprofit organization
California (2 cases)	Would have been removed if behaved improperly (1); trained in providing support (2)
Connecticut	Service dog that had not been certified but had reached testing age of two
Florida		Service or therapy dog evaluated and registered according to national standards
Hawaii		Dog graduate of ADI organization
Illinois		Graduate of ADI organization
Michigan	Therapy dog, also described as support animal
New York	Trained to sense stress and anxiety and present herself to be petted, unobtrusive presence in courtroom
Ohio (3 cases)	Companion dog presumably certified service dog (1); facility dog not otherwise described (2); dog described as facility, companion, or working dog (3)
Oklahoma		Dog trained and certified by AKC, Therapy Dogs International or equivalent organization
Tennessee	Service dog with 2 years training in obedience that had passed public access tests and handler had received 2-week training program
Texas	Service dog available from Child Advocacy Center
Washington (2 cases)	Trained by and living with prosecutor, could not growl at defendant (1); dog referred to as a service or comfort dog (2)
Total Requiring Organizational Certification or Registration	0	6

If any of the states with decisional law were to pass an organizationally restrictive statute, as New York for one is considering, the case law of the state may no longer be authoritative as to the qualification of a dog accompanying a witness.  New York’s proposal (A00389), known as Rosie’s Law, would also require that a dog be “a graduate from an assistance dog organization accredited by Assistance Dogs International.”  That is not something New York v. Tohom required.

New Ohio Decision

Some  states have had more than one decision, including Ohio. In Ohio v. Hasenyager, CA No. 27756 , decided June 22, a 13-year-old girl testified that her great uncle, Bruce Hasenyager, had been inappropriately touching her since she was seven years old.  Hasenyager was convicted of rape and gross sexual imposition and was sentenced to an indefinite term of life in prison without eligibility for parole after 20 years.  On appeal, Haysenyager assigned error to the trial judge’s allowing a facility dog to accompany the victim witness during her testimony.  The Ohio appellate court discussed the prior Ohio appellate decision of Jacobs, which is described in my article.  Although Hasenyager argued that he had been prejudiced by the dog’s “movements and interruptions,” the appellate court in Haysenyager stated:

[T]he trial court record does not reflect that the dog became agitated or that defense counsel objected to the dog’s continued presence due to its purported agitation. It is impossible to discern from the record how the facility dog was behaving during cross-examination, as defense counsel failed to object to the dog’s behavior or cause the record to reflect any behavior that he intended to challenge. Accordingly, we determine that Hasenyager has both failed to preserve this portion of his argument and to meet his burden of supporting such an argument with citations to the record.

Thus, this is another case where defense counsel did not make a timely objection to the use of a facility dog.  The Ohio appellate court rejected other assignments of error and affirmed. 

Conclusion

I will let the article on the Animal Legal & Historical Center website speak for itself, but I want to emphasize that I believe this is an area where a rush to legislate is unnecessary.  Decisions by judges at all levels have been generally well considered, particularly given the frequent absence of preparation by defense counsel, and there is no trend in the case law that needs to be reversed by legislatures that regard themselves as better informed than the judiciary.  Rather, it appears to me that the appeal of these statutes lies in the fact that legislators get to portray themselves as defenders of innocent victims and have their photographs appear in the news media next to very kindly looking dogs.  Admittedly there has not yet been any effective lobbying by any major therapy dog organization, so if the legislative trend continues, anyone doing this work with a therapy dog will have to consider their ability to do so may be time-limited.

I have to acknowledge a certain respect for those who want to create a bulletproof facility dog for children and vulnerable witnesses, a dog that will be as steady in the performance of its responsibilities as a guide dog is with a blind person or a mobility impairment dog is with a child with cerebral palsy, a dog that will not disrupt the courtroom by standing up to seek attention, bark at the noise of sirens in the street outside the courthouse, that will perhaps press against the child on sensing her anguish.  That is a good thing.  The domestic dog has been reliably performing functions for us since the beginning of the Neolithic period in Eurasia, however, and quite possibly, it is now argued by a certain group of geneticists and archeologists, for thousands if not tens of thousands of years before that. The amount of training involved for those functions has always been variable from culture to culture, function to function, and we have always accepted the help we could get. The dog that spooked the game was confined to the hut or cave, while the dog that remained quiet until loosed for the chase was taken with the hunter.  The amount of training was not the sole issue.  The disposition, the inquisitiveness, the ability to look and sniff before barking--in short, the personality of the dog was also considered by the ancient hunter in deciding whether he wanted the animal beside him as he carried his bow and arrow into the forest.

When tracking of escaped convicts and perpetrators from crime scenes came before American courts, particularly in the American South after the Civil War, the judges who heard the cases were often hunters who owned dogs, sometimes several types of hunting dogs, such as hound dogs to track the deer and greyhounds to run the deer down.  They knew the limits of dogs and fashioned practical standards to apply in determining the admission of "bloodhound testimony."  That sort of wisdom eventually left the bench, or became so rare that many opinions on tracking dogs and scent identification dogs showed little understanding of how dogs actually operate, and the judges were often persuaded by the party in the case that had prepared most carefully on the canine evidence that was being produced. Here, however, with facility dogs in courtrooms, the judges who have heard the cases are familiar with what is needed for the efficiency and decorum of the courtroom, and I have seen no indication that they have been unable to determine that a dog can help a witness get through an hour on the stand, whether that dog is a service dog trained for two years, a therapy dog trained for six months, or a calm and steady Labrador owned by a lawyer or police officer that has shown its ability to do courtroom work without anything more than a basic obedience class. 

Where police and prosecutors can afford, or get donations that allow, the use of expensively trained service dogs for court work, this use of dogs could grow despite the restrictions on those who can provide the dogs.  For more strapped public agencies, however, it could mean that a dog would not be available when needed even if there is one that could easily be evaluated and found adequate to the task. I regret that state legislators have begun to insist on interfering with a judicial function that, as near as I can see, has been working quite well.  

Thanks to Brad Morris and L.E. Papet for suggestions and corrections. 

Transportation Department Gets Specific about Service Animal Relief Areas in Airports

On August 5, 2015, the Department of Transportation published a final rule in the Federal Register regarding service animal relief areas (SARAs) in airports, requiring that most airports have one such area for each terminal and generally inside the sterile section of the terminal.  The requirements of the final rules were described here in a prior blog. 

The Department has now issued a draft of an Advisory Circular “designed to assist airports in complying with the laws and regulations regarding individuals with disabilities,” which includes a set of standards for SARAs. The draft Circular, AC 150/5360-14A, which will cancel and replace a prior Circular that was issued on June 30, 1999, adds significant granularity to the relief area requirements. 

Before making the proposed draft final, the Department “invites interested persons, airport operators, guide dog trainers and handlers, consultants, industry representatives, and all other interested parties to review and comment on the draft.”  Comments may be submitted until June 6 on the regulations.gov website. The specific reference to “guide dog trainers and handlers” may not be an atavistic throwback to the days when most service dogs were guide dogs, but may reflect the Department’s express interest in issues of particular importance to individuals who use guide dogs:

The FAA is also aware that it may be difficult for people with visual impairments to navigate within the SARA. To allow these people to familiarize themselves with the SARA’s layout before entering, the AC recommends placing special signs, maps, and other orienting cues at the entrance to the SARA. In addition, this AC defines the airport terminal for the purpose of helping airports decide on the number and locations of required SARA. To enhance SARAs, the FAA is seeking input on new concept cleaning technology; like nano technology as a potential for self-cleaning SARA.

The draft Circular deserves the attention of the service animal community, particularly when an airport wishes to place a SARA outside of the sterile area of a terminal.  The draft states that when this is the case, the airport must obtain the agreement of a service animal training organization.  Also, “the airport must … document and retain a record of this agreement, including when TSA prohibits location of the SARA in a sterile area.” 

Proposed Standards for Service Animal Relief Areas

The draft SARA Standards in the Circular, printed in full in the Appendix at the end of this blog, provide that a relief area “must be located on an accessible route to each terminal.” Although 49 CFR 27.71(2) specifies that there must be “at least one relief area in each airport terminal,” the draft provides that “[o]ne relief area may serve two or more terminals if travel to and from it meets reasonable transit times…,” which means that the “transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min,” with “expected time using transportation vehicles and waiting time for an escort, wheelchair, or elevators” being included in total transit time.

Relief areas “must be designed to accommodate a person using a wheelchair handling a service animal on a six-foot leash.”  In 1991, the Department issued Accessibility Guidelines for Buildings and Facilities that included diagrams indicating such things as turning space needed for wheelchairs, from which the diagram shown here is taken.

The draft provides that in “busier locations, a relief area may be sized to accommodate more than one service animal at one time.”  Presumably in smaller airports, therefore, relief areas may be so small as to only accommodate one animal at a time. Nevertheless that space would have to be large enough for a wheelchair user to enter and turn around.    

Two Surfaces Required in Each Relief Area

A relief area is to have “at least two surfaces.”  The draft elaborates:

One [surface] should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.

Fencing may be necessary, particularly for SARAs outside of buildings, which will often mean outside of sterile areas. Nevertheless, the draft suggests that outdoor locations are preferred because “some animals are trained not to relieve indoors.”  Also, strong chemicals are often used to clean indoor relief areas, and some dogs may consequently balk at entering them. (Veronica Morris makes the interesting observation that "before 9/11, it was common for individuals with service animals to be allowed to go onto the tarmac from the gate and potty their animals on the tarmac or on nearby patches of grass, which actually worked out pretty well.")

SARAs cannot be co-located with a designated smoking area.  Apparently the Department feared that some airports would try to combine troublesome smells by putting smoke and dog poop near each other.

Water Sources and Fake Fire Hydrants

A SARA “must include a sink and a faucet for hand washing,” with potable water as users can be expected to fill water bowls in the SARA. The SARA must have a separate water source for cleaning and must have adequate drainage so that water used in cleaning can run off.   A SARA must include something like a rock or fake fire hydrant “to encourage urination by male dogs.”  There must also be poop bags and a receptacle for them, and these must be placed so that wheelchair users can get to them. A sign should indicate that users should clean up after their animals (though as already noted the request for comments raised the possibility of self-cleaning SARAs).   

The airport must have signage and maps indicating where SARAs are located. “Braille signing must be installed adjacent to the side of doors and gates opposite the hinges.”  Airports are encouraged “to adopt state-of-the-art technology (e.g., smart phone applications) as it becomes available.” 

Tweaking the Definition of Service Animal

Throughout the Federal Register 2015 release on service animal relief areas no definition of service animals was provided, and I did not think at the time that any definition was particularly needed.  It could be assumed that someone at an airport who would be using a SARA would have a service animal that was going to enter the cabin of an airliner (as an animal going into a pressurized and heated hold would have been checked before the passenger entered the sterile area).  Also, the Department acknowledged that pets and TSA dogs would be using SARAs along with service dogs:

The final rule also offers the benefits of improved convenience to nondisabled persons accompanied by an animal or pet while at the airport. Although these benefits are not encompassed by the rule’s purpose, individuals traveling with pets or security dogs trained to detect security threats may also find it convenient to use service animal relief areas located in the secure area of the airport.

Nevertheless, the draft Circular now provides a definition of service animal:

Service Animal.

Any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, providing emotional support, pulling a wheelchair, or fetching dropped items. (49 CFR § 37.3)

One would expect from the parenthetical at the end of the definition that it follows 49 CFR 37.3 word for word.  It does not.  The regulation does not contain the italicized phrase, “providing emotional support.”  The 1999 Circular that is being replaced had used the exact definition from 49 CFR 37.3, i.e., without that phrase. 

The reference to emotional support appears to have been inserted by the drafters of the proposed Circular not from 49 CFR at all but rather the Air Carrier Access Act releases of the Department.  For instance, in policy guidance issued in 2003, a service animal was defined, for purposes of assisting airline employees in determining whether an animal qualifies, as “[a]ny animal that is individually trained or able to provide assistance to a qualified person with a disability; or any animal shown by documentation to be necessary for the emotional well being of a passenger.” (68 Fed. Reg. 24878, May 9, 2003)  In that definition, however, and generally in the Department’s ACAA guidance, there is no presumption that emotional support requires training. 

The phrase is, in any case, inconsistent with the approach of the Department of Justice, which provides in its basic definition in 28 CFR 36.104 that “the provision of emotional support [does] not constitute work or tasks for the purposes of this definition.” The definition in 49 CFR 37.3 was not original with the Department of Transportation, which adopted it in September 1991 (56 Fed. Reg. 45624, September 6, 1991), but rather was the definition of service animal in the first ADA regulations issued by the Department of Justice in July 1991 (56 Fed. Reg. 35544, July 26, 1991), a definition that for DOJ was superseded in 2010.  Thus by adding the emotional support phrase to a now outdated DOJ definition, the draft Circular has created an illogical hybrid that requires training but allows providing emotional support as sufficient to qualify an animal as a service animal. 

Miniature Horses

This effort by the drafters of the proposed Circular to modify the definition of service animal presents another problem, though this one may be temporary.  The problem comes from a footnote to the tweaked definition, which states the following:

A public entity shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability. (28 CFR § 35.136). 

Thus, the Department would acknowledge, as did the Department of Justice in 2010, that a miniature horse may, much like a dog, fulfill service animal functions, particularly as a guide (28 CFR 36.302(c)(9), as finalized by DOJ in 75 Fed. Reg. 56236, September 15, 2010). 

The Department of Transportation indicated as far back as 2011 that it might have to consider revising its definition of service animal in light of the revisions made by the Department of Justice in 2010, saying that the “Department will consider whether, in the future, to propose changes to part 37 to parallel the new DOJ definitions.  Meanwhile, the existing DOT definitions continue in effect.”  (76 Fed. Reg. 57924, September 19, 2011)  That may be changing, however.

Neither of the Department of Transportation’s definitions of service animal has a species limitation—either the one in the 2003 ACAA guidance or the one in 49 CFR 37.3.  Referring to miniature horses as an exception only makes logical sense if the Department of Transportation has a species limitation on service animals, which it does not.  In issuing its 1991 rule defining service animals, DOT specifically stated that “[o]ther animals (e.g. monkeys) are sometimes used as service animals as well…. the entity must permit the service animal to accompany its user.” The Department accepts that not all service animals need to be admitted to an airplane cabin, however, and stated the following in 2008:

[T]he Department has added language to the final rule specifying that carriers need never permit certain creatures (e.g., rodents or reptiles) to travel as service animals. For others (e.g., miniature horses, pot-bellied pigs, monkeys), a U.S. carrier could make a judgment call about whether any factors (e.g., size and weight of the animal, any direct threat to the health and safety of others, significant disruption of cabin service) would preclude carrying the animal. Absent such factors, the carrier would have to allow the animal to accompany its owner on the flight. (73 Fed. Reg. 27636, May 13, 2008)

The reason any confusion here may be temporary is that the Department of Transportation has begun a process of revising its service animal airplane access rules, and the possibility of conforming its rules to those of the Department of Justice is clearly on the table. The Department of Transportation’s initiative with regard to service animal access has been discussed extensively in several blogs on this site. Thus, as with the Department of Justice, the Department of Transportation may be moving towards recognizing only dogs, and perhaps miniature horses, as service animals and the footnote reference to miniature horses may be an indication of where the Department expects its revision process to go in this regard.   

Meanwhile, however, the occasional monkey, pot-bellied pig, or miniature horse may, if trained to do so, make use of a SARA. 

Conclusions

No specific mechanism is provided for service animal organizations to engage with airports on the design and implementation of service animal relief areas.  The regulations may consider it the responsibility of an airport to find a guide or service dog organization that will be willing to give a perspective on or approve plans the airport is considering. Individuals with vision impairments and individuals who use wheelchairs will have somewhat different needs when it comes to design of relief areas, so it is to be hoped that a range of organizations will be able to participate in relief area designs. 

Since the Department seeks input from interested parties on the Circular, though allowing only a month to submit comments on the regulations.gov website (by entering Docket No. FAA-2016-4716), a guide dog or service animal organization wishing to be involved in the design and creation of relief areas in an airport should consider submitting a comment expressing this interest and thereby put the airport (through the FAA) on notice of its availability. As previously noted, this must be done by June 6.  

It appears the drafters of the Circular inside the Department of Transportation are hedging their bets by massaging the definition of service animal to take into account changes that may be coming to the Department’s longstanding acceptance of a broad range of species as service animals.  At the moment, however, a service animal relief area cannot be presumed to be one that will only be used by dogs, or even just by dogs and miniature horses. (No miniature horse lobbying group put itself forward to participate in the Reg Neg process for revising the ACAA rules on service animals, though a capuchin monkey group did submit a comment. I am told by someone associated with this group that service monkeys generally wear diapers during flights and do not require a service area.)  

Thanks to Brad Morris for careful review and correction of the legal issues.

APPENDIX: STANDARDS FOR SERVICE ANIMAL RELIEF AREAS

A.1 General.

The SARA standards below have been developed in collaboration with nationally recognized service animal training organizations and groups of users of service animals.

A.2 Number.

SARA must be located on an accessible route to each terminal. One relief area may serve two or more terminals if travel to and from it meets reasonable transit times as defined in paragraph A.3.

A.3 Transit time.  

The design transit time from any gate to a relief area is no more than 15 minutes, based on a walking pace of 200 ft/min. Any expected time spent using transportation vehicles and waiting time for an escort, wheelchair, or elevators is included in this total transit time.

A.4 Size and shape.

The SARA may be of any shape, but must be designed to accommodate a person using a wheelchair handling a service animal on a six-foot leash. In busier locations, a relief area may be sized to accommodate more than one service animal at one time.

A.5 Surfaces.

A relief area should have at least two different surfaces. One should be hard and located immediately inside the entrance to allow wheelchair access. This surface should be delineated in a manner to indicate the portion intended to be traversed by people, and the portion intended for animal relief. The other should be an appropriate softer surface, such as gravel or mulch for outdoor areas, and artificial turf specially designed as an animal relief surface, treated to inhibit the spread of disease, for indoor (and outdoor) areas. Other artificial turf is not recommended, as it harbors odors and bacteria. Consider that artificial turf is often perceived as carpet by service animals, making them reluctant to use it. Avoid surfaces such as sand that will stick to paws and  be tracked outside the SARA. When using mulch, be sure it is not of a species that can be harmful to animals. Dark colored surfaces should not be used where exposed to the sun, as they can become unbearably hot.

A.6 Fencing.

Fencing or another suitable barrier, with an accessible gate/entrance, adequate to contain service animals must be provided.

A.7 Plumbing.

The SARA must include a sink with a faucet for hand washing. Water must be potable, as it will often also serve as a drinking water supply to fill bowls supplied by service animal handlers. A separate water supply must be included for use in cleaning the surface. The surface must be constructed with adequate drainage to facilitate regular cleaning.

A.8 Location.

Outdoor locations are preferred, as all service animals are trained to use outdoor relief areas. While some service animals are trained not to relieve indoors, at some terminals it may not be feasible to establish an outdoor relief area within the sterile area. In such cases, the relief area will have to be constructed indoors. SARA must not be co-located with a designated smoking area.  

A.9 Weather protection.

Outdoor SARA must include weather protection from sun and precipitation. If the SARA is close to operating aircraft, protection from jet blast and prop wash must be provided.

A.10 Scent.

The sense of smell is much more acute in animals than in humans. This can be a help or a hindrance in encouraging service animals to use a relief area. Pheromone-scented surfaces or devices can be beneficial, while disinfecting chemicals with strong odors can be detrimental.  

A.11 Accessories.

The SARA, at a minimum, must include:

1. A three-dimensional device (e.g. rock or fake fire hydrant) to encourage urination by male dogs.

2. Animal waste bags.

3. A waste receptacle.

Note: The disposal bags and receptacle must be located just inside the entrance to the SARA on an accessible route and at a height reachable by wheelchair users.

 

A.12 Wayfinding and Signage

A.12.1 Signage Standardization is desirable. 

The sign shown in Figure A-1, with or without accompanying text, may be used with directional arrows to guide users to the SARA. The signage, when used, must be included in airport layout maps and in wayfinding instructions provided throughout the airport. In addition, signing at the SARA should indicate the following:

1. The need for handlers to clean up after animals; 

2. The location of waste disposal bags, and waste receptacles, hand washing facilities, and any other facilities (e.g. automatic flushing controls);

3. Instructions for the operation of any facilities; and

4. Contact information for maintenance and assistance.

A.12.2 Other guidance.

Signage should be supplemented with means, including auditory announcements, to guide people with vision impairments. Braille signing must be installed adjacent to the side of doors and gates opposite the hinges. Airports are encouraged to adopt state-of-the art technology (e.g., smart phone applications) as it becomes available.