Dog Law Reporter

Audubon's Dogs: Hunting in the American South Before the Civil War

2012-02-01T08:49:00.036-05:00

John James Audubon, in his three-volume treatise, The Vivaparous Quadrupeds of North America (1846), only identifies two indigenous dogs of North America, the Hare-Indian Dog (Canis familiaris var. lagopus) and the Esquimaux Dog (Canis familiaris var. borealis), though he does describe a number of wolves and foxes. Nevertheless, in describing a wide range of animals that are hunted, he provides a wealth of detail regarding the hunting practices, indeed hunting cultures, of the pre-Civil War United States. For the slave states—he long resided in Kentucky and was himself a slave owner—Audubon provides considerable detail about how slaves were used in the hunts, what game they pursued on their own, and the dogs they owned.

Wildcat

The Common American Wild Cat, Lynx Rufus, killed livestock and game, and was hunted on the plantations of the South. (Here I will follow Audubon's spelling and capitalization preferences. Double click to see larger images.) In his description of such a hunt beginning early one morning, Audubon carefully explains the functions of the slaves—always a gentleman, he generally refers to them as servants.

“The hunters greet each other in the open-hearted manner characteristic of the Southern planter. Each pack of dogs is under the guidance of a coloured driver, whose business it is to control the hounds and encourage and aid them in the hunt. The drivers ride in most cases the fleetest horses on the ground, in order to be able, whilst on a deer hunt to stop the dogs. These men, who are so important to the success of the chase, are possessed of a good deal of intelligence and shrewdness, are usually much petted, and regarding themselves as belonging to the aristocracy of the plantation, are apt to look down upon their fellow servants as inferiors, and consider themselves privileged even to crack a joke with their masters.”

The hunt of the wildcat is not to change objective even if a deer is startled:

“The drivers are ordered to stop the dogs if a deer should be started, a circumstance which often occurs, and which has saved the life of many a Cat, whose fate five minutes before this unlucky occurrence was believed to be sealed. Orders are given to destroy the Cat fairly, by running him down with the hounds, or if this cannot be done, then by shooting him if he ascends a tree or approaches within gun shot of the stand which the hunter has selected as the most likely place for him to pass near. The day is most auspicious--there is not a breath of wind to rustle the falling leaves, nor a cloud to throw its shadows over the wide joyous landscape. The dew-drops are sparkling on the few remaining leaves of the persimmon tree, and the asters and dog-fennel hang drooping beneath their load of moisture. The dogs are gamboling in circles around, and ever and anon, in spite of all restraint, the joyous note breaks forth—the whole pack is impatient for the chase, and the young dogs are almost frantic with excitement.”

One could almost be reading of dogs before an English fox hunt:

“But we have not time for a farther description of the scene-whilst we are musing and gazing, the word is given, ‘Go!’ and off start the hounds, each pack following its own driver to different parts of the old fields, or along the borders of the swamps and marshes. Much time, labour and patience are usually required, before the ‘Cat’ can be found by the dogs: sometimes there is a sudden burst from one or the other of the packs, awakening expectation in the minds of the huntsmen, but the driver is not to be so easily deceived, as he has some dogs that never open at a rabbit, and the snap of the whip soon silences the riotous young babblers. Again there is a wild burst and an exulting shout, giving assurance that better game than a rabbit is on foot; and now is heard a distant shot, succeeded in a second of time by another, and for an instant all is still: the echoes come roaring up through the woods, and as they gradually subside, the crack of the whip is again heard stopping the dogs. The story is soon told; a deer had been started—the shot was too small—or the distance too great, or any other excuses, (which are always at hand among hunters of fertile imagination,) are made by the unsuccessful sportsman who fired, and the dogs are carried back to the ‘trail’ of the Cat, that has been growing fresher and fresher for the last half hour. At length, ‘Trimbush,’ (and a good dog is he,) that has been working on the cold trail for some time, begins to give tongue, in a way that brings the other dogs to his aid. The drivers now advance to each other, encouraging their dogs; the trail becomes a drag; onward it goes through a broad marsh at the head of a rice-field. ‘He will soon be started now!’ ‘He is up!’ What a burst! you might have heard it two miles off—it comes in mingled sounds, roaring like thunder, from the muddy marsh and from the deep swamp. The barred owl, frightened from the monotony of his quiet life among the cypress trees, commences hooting in mockery as it were, of the wide-mouthed hounds. Here they come, sweeping through the resounding swamp like an equinoctial storm—the crackling of a reed, the shaking of a bush, a glimpse of some object that glided past like a shadow, is succeeded by the whole pack, rattling away among the vines and fallen timbers, and leaving a trail in the mud as if a pack of wolves in pursuit of a deer had hurried by. The Cat has gone past. It is now evident that he will not climb a tree. It is almost invariably the case that where he can retreat to low swampy situations, or briar patches, he will not take a tree, but seeks to weary the dogs by making short windings among the almost impassable briar patches. He has now been twisting and turning half a dozen times in a thicket covering only three or four acres—let us go in and take our stand on the very trail where he last passed, and shoot him if we can. A shot is heard on the opposite edge of the thicket, and again all is still; but once more the pack is in full cry. Here he comes, almost brushing our legs as he dashes by and disappears in the bushes, before we can get sight of him and pull trigger. But we see that the dogs are every moment pressing him closer, that the marauder is showing evidences of fatigue and is nearly ‘done up.’ He begins to make narrower circles, there are restless flashes in his eye, his back is now curved upwards, his hair is bristled nervously forward, his tongue hangs out—we raise our gun as he is approaching, and scarcely ten yards off—a loud report—the smoke has hardly blown aside, ere we see him lifeless, almost at our very feet—had we waited three minutes longer, the hounds would have saved us the powder and shot!”

Wildcats might be treed by accident:

“In hunting at night for racoons and opossums, in which sport the negroes on the plantations of Carolina take great delight, a Cat is occasionally ‘treed’ by the dogs; and the negroes, who seldom carry a gun, climb up the tree and shake him off as they would do a racoon, and although he fights desperately, he is generally killed by the dogs.”

Cougar

An even more dangerous cat on the plantation was the Cougar, Felis Concolor, as indicated by the following story:

“Another respectable gentleman of the State of Mississippi gave us the following account. A friend of his, a cotton planter, one evening, while at tea, was startled by a tremendous outcry among his dogs, and ran out to quiet them, thinking some person, perhaps a neighbour, bad called to see him. The dogs could not be driven back, but rushed into the house; he seized his horsewhip, which hung inside the hall door, and whipped them all out, as he thought, except one, which ran under the table. He then took a candle and looking down, to his surprise and alarm discovered the supposed refractory dog to be a Cougar. He retreated instanter, the females and children of his family fled frightened half out of their senses. The Cougar sprang at him, he parried tbe blow with the candlestick, but the animal flew at him again, leaping forward perpendicularly, striking at his face with the fore-feet, and at his body with the hind-feet. These attacks he repelled by dealing the Cougar straight-forward blows on its belly with his fist, lightly turning aside and evading its claws, as he best could. The Cougar had nearly overpowered him, when luckily be backed toward the fire-place, and as the animal sprang again at him, dodged him, and the panther almost fell into the fire; at which he was so terrified that he endeavoured to escape, and darting out of the door was immediately attacked again by the dogs, and with their help and a club was killed.”

Black Bear

The American Black Bear, Ursus Americanus, was also hunted as a marauder. The division of labor in such a hunt on a plantation in Louisiana is described by Audubon in detail:

“Being one night sleeping in the house of a friend who was a Planter in the State of Louisiana, we were awakened by a servant bearing a light, who gave us a note, which he said his master had just received. We found it to be a communication from a neighbour, requesting our host and ourself to join him as soon as possible, and assist in killing Rome Bears at that moment engaged in destroying his corn. We were not long in dressing, and on entering the parlour, found our friend equipped. The overseer's horn was heard calling up the negroes. Some were already saddling our horses, whilst others were gathering all the cur-dogs of the plantation. All was bustle. Before half an hour had elapsed, four stout negro men, armed with axes and knives, and mounted on strong nags, were following us at a round gallop through the woods, as we made directly for the neighbour's plantation.

“The night was none of the most favourable, a drizzling rain rendering the atmosphere thick and rather sultry; but as we were well acquainted with the course, we soon reached the house, where the owner was waiting our arrival. There were now three of us armed with guns, half a dozen servants, and a good pack of dogs of all kinds. We jogged on towards the detached field in which the Bears were at work. The owner told us that for some days several of these animals had visited his corn, and that a negro who was sent every afternoon to see at what part of the enclosure they entered, had assured him there were at least five in the field that night. A plan of attack was formed: the bars at the usual entrance of the field were to be put down without noise; the men and dogs were to divide, and afterwards proceed so as to surround the Bears, when, at the sounding of our horns, every one was to charge towards the centre of the field, and shout as loudly as possible, which it was judged would so intimidate the animals as to induce them to seek refuge upon the dead trees with which the field was still partially covered.

“The plan succeeded: the horns sounded, the horses galloped forward, the men shouted, the dogs barked and howled. The shrieks of the negroes were enough to frighten a legion of bears, and by the time we reached the middle of the field we found that several had mounted the trees, and having lighted fires, we now saw them crouched at the junction of the larger branches with the trunks. Two were immediately shot down. They were cubs of no great size, and being already half dead, were quickly dispatched by the dogs.

“We were anxious to procure as much sport as possible, and having observed one of the Bears, which from its size we conjectured to be the mother of the two cubs just killed, we ordered the negroes to cut down the tree on which it was perched, when it was intended the dogs should have a tug with it, while we should support them, and assist in preventing the Bear from escaping, by wounding it in one of the hind-legs. The surrounding woods now echoed to the blows of the axemen. The tree was large and tough, having been girded more than two years, and the operation of felling it seemed extremely tedious. However, at length it began to vibrate at each stroke; a few inches alone now supported it, and in a short time it came crashing to the ground.

“The dogs rushed to the charge, and harassed the Bear on all sides, whilst we surrounded the poor animal. As its life depended upon its courage and strength, it exercised both in the most energetic manner. Now and then it seized a dog and killed him by a single stroke. At another time, a well administered blow of one of its forelegs sent an assailant off, yelping so piteously that he might be looked upon as hors du combat. A cur had daringly ventured to seize the Bear by the snout, and was seen hanging to it, covered with blood, whilst several others scrambled over its back. Now and then the infuriated animal was seen to cast a revengeful glance at some of the party, and we had already determined to dispatch it, when, to our astonishment, it suddenly shook off all the dogs, and before we could fire, charged upon one of the negroes, who was mounted on a pied horse. The Bear seized the steed with teeth and claws, and clung to its breast. The terrified horse snorted and plunged. The rider, an athletic young man and a capital horseman, kept his seat, although only saddled on a sheep-skin tightly girthed, and requested his master not to fire at the Bear. Notwithstanding his coolness and courage, our anxiety for his safety was raised to the highest pitch, especially when in a moment we saw rider and horse come to the ground together; but we were instantly relieved on witnessing the masterly manner in which Scipio dispatched his adversary, by laying open his skull with a single well directed blow of his axe, when a deep growl announced the death of the Bear.”

Fox

Dogs were sometimes imported, most probably from England, as indicated in the following passage regarding the Red Fox, Vulpes Velox:

“In order to ascertain whether the speed of the Red Fox was as great in the south as in the colder regions of the north, several gentlemen near Augusta, in the winter of 1844, resolved to test the question by a regular Fox chase. They congregated to the number of thirty, with one hundred hounds, many of them imported dogs, and all in fine running order. They started a Fox at two o'clock on a moonlight morning. He took to a pretty open country on the west bank of the Savannah river. A number of gentlemen were mounted on fleet horses. Mr. Beile rode in succession three horses during the chase, two of which were good hunters. The pursuit of the flying beast was kept up till three o'clock in the afternoon, having continued thirteen hours, when the horses and the whole pack of hounds were broken down, and the hunt was abandoned.”

Raccoon

Some animals were hunted primarily by the slaves, including the Raccoon, Procyon Lotor. Audubon, describing a visit to a plantation, relates that the animal fed on birds and rabbits, but in winter robbed the poultry houses. “The Negroes on his plantation he said kept good dogs, and relied on them for hunting the Raccoon.” Audubon records his host’s description of a hunt and what becomes of the meat:

“Whenever a Raccoon was about to attack the poultry house, the dogs scenting him give a shrill cry, which is the signal for his owner to commence the hunt. He comes out armed with an axe, with a companion or two, resolved on a Raccoon hunt. The dog soon gives chase with such rapidity, that the Raccoon, hard pressed, takes to a tree. The dog, close at his heels, changes his whining cry while running to a shrill short sharp bark. If the tree is small or has limbs near the ground so that it can be easily ascended, the eager hunters climb up after the 'coon.’ He perceives his danger, endeavours to avoid his pursuers by ascending to the farthest topmost branch, or the extremity of a limb; hut all his efforts are in vain, his relentless pursuers shake the limb until he is compelled to let go his bold, and he comes toppling heavily to the ground, and is instantly seized by the dogs. It frequently happens however that the trees are tall and destitute of lower branches so that they cannot be climbed without the risk of life or limb. The negroes survey for a few moments in the bright moonlight the tall and formidable tree that shelters the coon, grumble a little at the beast for not having saved them trouble by mounting an easier tree, and then the ringing of their axes resounds through the still woods, awakening echoes of the solitude previously disturbed only by the hooting of the owl, or the impatient barking of the dogs. In half an hour the tree is brought to the ground and with it the Raccoon, stunned by the fall: his foes give him no time to define his position, and after a short and bloody contest with the dogs, he is despatched, and the sable hunters remunerated, —for his skin they will sell to the hatters in the nearest town, and his flesh they will bang up in a tree to freeze and furnish them with many a savoury meal.”

Opossum

The Opossum, Didelphis Virginiana, was hunted on plantations throughout the South:

“‘Come, men,’ says one, ‘be lively, let us finish our tasks by four o'clock, and after sundown we will have a 'possum hunt.’ ‘Done, says another, ‘and if an old coon comes in the way of my smart dog, Pincher, I be bound for it, he will shake de life out of him.’ The labourers work with increased alacrity, their faces are brightened with anticipated enjoyment, and ever and anon the old familiar song of 'Possum up the gum tree‘ is hummed, whilst the black driver can scarcely restrain the whole gang from breaking out into a loud chorus.”

As to the dogs for such a hunt, they are “two or three curs, half hound or terriers, each having his appropriate name, and each regarded by his owner as the best dog on the plantation.” The slaves banter, one calling another’s dog a “good-for-nutten fox-dog.” The tools are axes and torches:

“One of these humble rustic sportsmen shoulders an axe and another a torch, and the whole arrangement for the hunt is completed. The glaring torch-light is soon seen dispersing the shadows of the forest, and like a jack o'lantern, gleaming along the skirts of the distant meadows and copses. Here are no old trails on which the cold-nosed hound tries his nose for half an hour to catch the scent. The tongues of the curs are by no means silent--ever and anon there is a sudden start and an uproarious outbreak: ‘A rabbit in a hollow, wait, boys, till I twist him out with a hickory.’ The rabbit is secured and tied with a string around the neck: another start, and the pack runs off for a quarter of a mile, at a rapid rate, then double around the cotton fields and among the ponds in the pine lands—’Call off your worthless dog, Jim, my Pincher has too much sense to bother after a fox.’ A loud scream and a whistle brings the pack to a halt, and presently they come panting to the call of the black huntsman. After some scolding and threatening, and resting a quarter of an hour to recover their breath and scent, they are once more hied forwards. Soon a trusty old dog, by an occasional shrill yelp, gives evidence that he has struck some trail in the swamp. The pack gradually make out the scent on the edges of the pond, and marshes of the rice fields, grown up with willows and myrtle bushes (Myrica cerifera). At length the mingled notes of shrill and discordant tongues give evidence that the game is up. The race, though rapid, is a long one, through the deep swamp, crossing the muddy branch into the pine lands, where the dogs come to a halt, unite in conclave, and set up an incessant barking at the foot of a pine. ‘A coon, a coon! din't I tell you,’ says Monday, 'that if Pincher come across a coon, he would do he work!’ An additional piece of split lightwood is added to the torch, and the coon is seen doubled up in the form of a hornet's nest in the very top of the long-leaved pine, (P. palwtria). The tree is without a branch for forty feet or upwards, and it is at once decided that it must be cut down: the axe is soon at work, and the tree felled. The glorious battle that ensues, the prowess of the dogs, and the capture of the coon, follow as a matter of course.”

Deer

Audubon notes that deer hunting varies from place to place:

“In mountainous, rocky regions, where horses cannot be used with advantage, he [the hunter] goes on foot, armed with a rifle, carries no dog, and seeks for the Deer in such situations as his sagacity and experience suggest. He either espies him in his bed, or silently steals upon him behind the covert of the stem of a large tree whilst he is feeding, and leisurely takes a steady and fatal aim. On the contrary, in situations adapted to riding, where the woods are thickly clothed with underbrush, where here and there wide openings exist between briar-patches, and clumps of myrtle bushes, as in the Southern States, the Deer are almost universally chased with hounds, and instead of the rifle, double-barrelled deer guns, of different sizes, carrying from twelve to twenty buck-shot, are alone made use of by the hunters.”

As in England, dogs could be specialized for different phases of a deer hunt, with beagles used to track and greyhounds to bring the animal down.

Hunting deer could present considerable risk to a slave, or a dog, as shown by the following story concerning a night hunt of Virginian Deer, Cervus virginianus.

“Fire hunting is another destructive mode of obtaining Deer. In this case two persons are essential to success. A torch of resinous wood is carried by one of the party, the other keeps immediately in front with his gun. The astonished Deer instead of darting off seems dazzled by the light, and stands gazing at this newly kindled flame in the forest. The hunter sees his eyes shining like two tapers before him ; he fires and is usually successful; sometimes there are several Deer in the gang, who start off for a few rods at the report of the gun, and again turn their eyes to the light. In this manner two or three are frequently killed within fifty yards of each other. This kind of bunting by firelight is often attended with danger to the cattle that may be feeding in the vicinity, and is prohibited by a law of Carolina, which is however frequently violated. The eyes of a cow are easily mistaken for those of a deer. We conversed with a gentleman who informed us that he had never indulged in more than one fire-hunt, and was then taught a lesson which cured him of his passion for this kind of amusement. He believed that he saw the eyes of a Deer and fired, the animal bounded off, as he was convinced, mortally wounded. In the immediate vicinity he detected another pair of eyes and fired again. On returning the next morning to look for his game, he found that he bad slaughtered two favourite colts. Another related an anecdote of a shot fired at what was supposed to be the shining eyes of a Deer, and ascertained to his horror that it was a dog standing between the legs of a negro, who had endeavoured to keep him quiet. The dog was killed and the negro slightly wounded.”

Black Wolf
The Black Wolf, Canis Lupus var. Ater, was still prevalent, and sometimes dangerous, as Audubon relates regarding an incident in Kentucky:

“Although Wolves are bold and savage, few instances occur in our temperate regions of their making an attack on man; and we have only had one such case come under our own notice. Two young negroes, who resided near the banks of the Ohio, in the lower part of the State of Kentucky, about thirty years ago, had sweethearts living on another plantation, four miles distant. After the labours of the day were over, they frequently visited the fair ladies of their choice, the nearest way to whose dwelling lay directly across a large cane brake. As to the lover every moment is precious, they usually took this route to save time. Winter had set in cold, dark and gloomy, and after sunset scarcely a glimpse of light or glow of warmth were to be found in that dreary swamp, except in the eyes and bosoms of the ardent youths who traversed these gloomy solitudes. One night, they set forth over a thin crust of snow. Prudent, to a certain degree, the lovers carried their axes on their shoulders, and walked as briskly as the narrow path would allow. Some transient glimpses of light now and then met their eyes in the more open spaces between the trees, or when the heavy drifting clouds parting at times allowed a star to peep forth on the desolate scene. Fearfully, a long and frightful howl burst upon them, and they were instantly aware that it proceeded from a troop of hungry and perhaps desperate wolves. They paused for a moment and a dismal silence succeeded. All was dark, save a few feet of the snow-covered ground immediately in front of them. They resumed their pace hastily, with their axes in their hands prepared for an attack. Suddenly, the foremost man was assailed by several wolves which seized on him, and inflicted terrible wounds with their fangs on his legs and arms, and as they were followed by many others as ravenous as themselves, several sprung at the breast of his companion, and dragged him to the ground. Both struggled manfully against their foes, but in a short time one of the negroes had ceased to move; and the other, reduced in strength and perhaps despairing of aiding his unfortunate comrade or even saving his own life, threw down his axe, sprang on to the branch of a tree, and speedily gained a place of safety amid the boughs. Here he passed a miserable night, and the next morning the bones of his friend lay scattered around on the snow, which was stained with his blood. Three dead wolves lay near, but the rest of the pack had disappeared; and Scipio sliding to the ground, recovered the axes and returned home to relate the terrible catastrophe.”

Note that this is the second reference to the slave Scipio.

Conclusion

As was true of the forest laws of medieval England, social hierarchies were reflected in the kinds of dogs separate classes owned. In England, however, the greyhound was restricted to those who had a high income, whereas in the American South the separation of classes was primarily due to the economics of masters and slaves on plantations. Plantation owners could import dogs and maintain bloodlines. Although greyhounds are mentioned by Audubon, by far the most common breed he describes in plantation hunts is the foxhound, though he does not think the dog ideal in all circumstances, mentioning cases where foxhounds could not catch the game being hunted. Slaves and the poor picked up the mixed breeds and rejects.

The Vivaparous Quadrupeds of North America was Audubon’s last work, and though not the reason for his continuing fame, is a valuable source on both mammals and their significance to human society before the Civil War. When Audubon wrote, much of the United States remained wild, and the West was still poorly known. Game was plentiful, and Indian nations west of the Mississippi lived the ways of their ancestors, though that was beginning to change. There is a naïveté about Audubon’s description of hunts, a recollection of the time when gentlemen hunted because it was part of their destiny, something that came with one’s station in life. Some observations about slaves might seem callous now, but Audubon was an advanced thinker as a naturalist, and his powers of observation were not lost in his descriptions of hunting.

Thanks to Richard Hawkins for ideas and suggestions.

The Dogs of the Great Plains Nations

2012-01-22T11:01:00.135-05:00

A strange sight likely met the Spaniards several days march north of the Pecos River in 1541. Thousands of Indians crossing an endless stretch of flat country, with tents, packs, children, even round river boats—all their possessions—dragged and carried by dogs mixed among and coaxed by the women, a moving city spread out as far as the eye could see, searching for the great woolly cattle that sustained them.

Yet the Spaniards would not have been shocked by the numbers of dogs, only by their function. The armies of the conquistadors included hundreds—in at least one case over a thousand—war dogs, large animals that required great amounts of food, dogs that were for the Spaniards a crucial (though now often overlooked) part of their war technology. To the Indians, particularly of Central and South America, the Spanish dogs were fearsome demons that ravaged their ranks even before their men could raise their bows against the armored soldiers and their new types of weapons. The battle was often lost before it began because of the dogs.

The Plains Indians did not have horses until the Spaniards lost and traded some of theirs, so their mobile life required that they use the only domesticated animal they had, the dog, which had been refined for generations to fulfill its purpose of dragging and carrying the provisions of a hunting culture. The first plate show's George Catlin's painting of the Sioux moving camp in the 1830s, by which time both horses and dogs pulled the travois.

Origins of North American Dogs

Grover Allen, a Harvard biologist writing in 1920, correctly perceived the origin of the dogs of the Americas:

“[T]here can be no question but that the domestic dogs of both Old and New Worlds are closely related and of common ancestry. It follows that instead of having domesticated various dog- or fox-like species of the American continents, the peoples of the New World must have brought their dogs with them, presumably from Asia, and this probably at a culture stage prior to the domestication of other animals, at least in the North, since no other domestic animal is common to the peoples of both hemispheres.”

Allen goes even further in anticipating Olsen (1974), Savolainen et al. (2002), Pang et al. (2009), and Brown et al. (2011) (though Brown et al. allow for the possibility of a non-East Asian origin of domestication):

“The probability therefore is that the Domestic Dog originated in Asia and was carried by primitive man both east and west into all parts of the inhabited world. That this migration began in late Pleistocene times seems highly probable.”

See Wayne and Vila (2001) for morphological evidence. Recently, Morey (2010) discusses the difficulty of correlating genetic timelines with archeological evidence.

Allen finds three basic types of dogs in the Americas, but considers the possibility that more than one type came across from Asia:

“In the Western Hemisphere three types of dogs may in a very general way be distinguished: — (1) the large wolf-like Eskimo Dog of the Arctic countries, strong, powerfully built, with broad muzzle, erect ears, and large bushy tail curled forward over the hip; (2) a smaller type, varying more or less in size and proportions, with erect ears but a drooping tail; and (3) a much smaller type, the size of a terrier, heavy of bone, usually with shortened rostrum as seen among the tribes of the Southwest or again, apparently more slender both in limb and skull as in southern Mexico or parts of South America. South of the Eskimo country, the two latter types of dogs are characteristic, and seem to have occurred together over much of their range, so that travellers often mentioned a "wolf-like" and a "foxlike” dog among the Indians of both North and South America, In this connection, it is interesting to recall Köhler's (1896) statement that in eastern Asia, between the provinces of Gansing and Ussuri, the Chinese have small fox-like dogs" [“Ihre Hunde gleichen einem kleinem Fuchse”], a comparison of which with the small American dogs would be of interest. The smaller American dogs of the slender type (Techichi) seem not very different from the Old World C. palustris, and may be not remotely related. The more heavily built small dogs with shortened faces and shorter, stouter limb-bones, are perhaps derived from the more slender type, and possibly owe certain of their peculiarities to cross-breeding with the larger dogs, though this is at present wholly conjectural.”

Hamilton Smith depicted a dog of the North American Indians, certainly in Allen’s broad second category. (Click on images to enlarge.) He described the dog as smaller than the coyote, “about equal in size to a spaniel,” an animal that was “sullen, and seldom uttered a howl; but his aspect was savage, and the colours of his fur were those of a common wolf.” Smith had seen a dog that belonged to Chief Tecumseh, which would put it further east than the dogs otherwise described here, though the form and coat coloration suggest that something close to the Plains-Indian dog.

Allen notes that though he uses the term “breed,” he is not trying to suggest there were conscious breeding programs:

“[W]hile the term “breed" is applied to these locally distinct forms of dogs, it is not assumed that the American natives made any conscious effort to change or keep constant the traits of their dogs; possibly some of the variations are merely the result of a certain mongrel mating, going on quite independent of human intent, so that, as in case of the Peruvian Pug-nosed Dog, the variation cropped out only occasionally and may or may not have been purposely preserved.”

There definitely was some separation of canine types in the wool and hunting dogs of the Pacific Northwest, though as a general statement, Allen is largely correct.

While the dogs of the Americas had an east Asian origin, their uses—or perhaps better, the priority of their uses—was considerably different from that found in the Old World. The dogs of the New World were more often pack carrying and draft animals, more often eaten, and in many locations not used in tracking and hunting. They provided guarding functions, barking at intruders, but were not trained to fight. Catlin (1841), for instance, reports that before battle, the Sioux warriors blackened their faces, but the women muzzled the dogs.

Types of Dogs Used by Great Plains Tribes

Allen describes two types of dogs used by native Americans along the Missouri River, the Plains-Indian dog and the larger Sioux dog. Although these types were not always easy distinguished, Gilbert Wilson (1924) concludes that “the Hidatsa dog was approximately of the Sioux type.”

Prince Maximilian of Wied, a German explorer who began his travels among North American Indians in 1832, is quoted by Wilson regarding the Sioux dog:

“Smaller articles were conveyed by the dogs…. The dogs, whose flesh is eaten by the Sioux, are equally valuable to the Indians. In shape they differ very little from the wolf, and are equally large and strong. Some are of the real wolf colour; others black, white, or spotted with black and white, and differing only by the tail being rather more turned up. Their voice is not a proper barking, but a howl, like that of the wolf, and they partly descend from wolves, which approach the Indian huts, even in the daytime, and mix with the dogs…. [they] showed their teeth when any one approached them.”

Henry Marie Brackenridge, who ascended the Missouri River in 1811, described the dogs of the Arikara as often indistinguishable from wolves:

“The dogs, of which each family has thirty or forty, pretended to make a show of fierceness, but on the least threat, ran off. They are of different sizes and colors. A number are fattened on purpose to eat, others are used for drawing their baggage. It is nothing more than the domesticated wolf. In wandering through the prairies, I have often mistaken wolves for Indian dogs. The larger kind has long curly hair, and resembles the shepherd dog. There is the same diversity amongst the wolves of this country. They may be more properly said to howl, than bark.”

Schwartz (1997) states that “on the Plains, to a much greater degree than elsewhere, native dogs received frequent influxes of wolf blood—with or without the connivance of people.” Various travelers recorded that bitches were tied up outside villages to encourage their being impregnated by wolves. (See, e.g., Richardson, 1829) Dogs of the Indians were known to interbreed with coyotes as well as wolves. “[T]here is nothing in Audubon’s description of the Hare-Indian dog specifically inapplicable to the Coyoté.” (Coues and Yarrow, 1874).

Hunting

Audubon (1854), without mentioning a specific location, says that Indians destroyed beaver dams and used dogs to help capture the beavers. Traditions exist among some Plains tribes that hunting could involve using dogs to drive buffalo and other game over cliffs and into dead-end canyons, after which the dogs would be recalled and the prey could be killed by arrows or rocks. (La Flamme, 2012).

In general, however, early travelers and anthropologists make few references to dogs in hunting, though the dogs might pull a sledge during a winter hunt, as shown by Catlin. Peter Rindisbacher painted Assiniboines hunting with dogs (c.1822-4), the animals apparently used to surround and harass a buffalo.

Mandelbaum (1940), writing about the Plains Cree, states:

“Dogs were not used in hunting, although they were always eager to give chase. When a hunt was in progress near them, laden dogs had to be held, lest they run after the fleeing buffalo and so spill their burdens. Dogs were taken along by war parties to carry extra moccasins and other supplies.”

Mandelbaum notes, however, that dogs would sometimes kill and eat a young colt, and when “allowed to run free they would try to separate a buffalo calf from the herd and make the kill.”

Draft and Pack Functions

Coronado’s expedition to northern Texas in the 16th century may provide the earliest description by a European of the use of dogs in carrying and dragging loads. The narrative of Pedro de Castenada de Nacera says of the Indians encountered north of the Pecos River that "they travel like the Arabs, with their tents and troops of dogs [perros] loaded with poles and having Moorish pack saddles with girths. When the load gets disarranged, the dogs howl, calling some one to fix them right." A letter written on the Rio Grande in 1541 (included in Winship, 1896) adds:

"The people have dogs like those in this country [Spain], except that they are somewhat larger, and they load these dogs like beasts of burden, and make saddles for them like our pack saddles, and they fasten them with their leather thongs, and these make their backs sore on the withers like pack animals. When they go hunting, they load these with their necessities, and when they move—for these Indians are not settled in one place, since the travel wherever the cows [buffalo] move, to support themselves—these dogs carry their houses, and they have the sticks of their houses dragging along tired on to the pack-saddles, besides the load which they carry on top, and the load may be, according to the dog, from 35 to 50 pounds.”

The practicality of the dogs is explained as due to the flatness of the country. Curiously, this use of the dogs reminds Castenada of a passage in Marco Polo concerning the Tartars, who have dogs as large or little smaller than asses [canes tan drandes ó poco menos ques asnos] which are harnessed to a sort of cart and can traverse quagmires.

Yet the conquistadors brought their own dogs for military purposes, along with horses, and the mere presence of this expedition and those after began massive change to all North American dog cultures.

Variations in Dog Cultures

Prince Maximilian of Wied (1834) described variations between the tribes in numbers and characteristics of dogs:

“When they quit their huts for a longer period than usual, they load their dogs with the baggage, which is drawn in small sledges, made of a couple of thin, narrow boards, nine or ten feet in length, fastened together with leather straps, and with four cross-pieces, by way of giving them firmness. Leather straps are attached in front, and drawn either by men or dogs. The load is fastened to the sledge by straps…. The Mandans and Manitaries have not, by any means, so many dogs as the Assiniboins, Crows, and Blackfeet. They are rarely of the true wolf's color, but generally black, or white, or else spotted with black and white. Among the nations further to the north-west they more nearly resemble the wolf, but here they are more like the prairie wolf (Canis latrans [coyote]). We likewise found, among these animals, a brown race, descended from European points, hence the genuine bark of the dog is more frequently heard here, whereas among the western nations they only howl. The Indian dogs are worked very hard, have hard blows, and hard fare; in fact, they are treated just as this fine animal is treated among the Esquimaux.”

Complaints of the harsh treatment the dogs receive, particularly those used in pack carrying and draft work, are common among early travelers.

Grover Allen provides a brief summary of the use of the travois:

“In the plains country from Saskatchewan to the Mexican Boundary, the travois was in general use. This consisted of two light poles, the smaller ends fastened together and resting on the dog's shoulders, the heavier ends kept apart by a crosspiece and trailing behind. A leather collar served to keep this frame in place for dragging the goods piled upon it. In this way entire villages moved, the dogs dragging the household effects. The contrivance seems not to have been used west of the Rocky Mountains.”

Catlin describes the “grand procession” of a Sioux camp moving, stretched out for miles, with each horse and dog loaded with its burden. The drawing shows both dogs and horses with travois, and a woman leading a horse with a baby on her back and a dog held in her cloak. (For art historians, the color plate of this procession above does not include the dogs behind the woman in the foreground, nor the dog in her cloak. Was Catlin afraid that the sketch of the actual procession would make her too sympathetic for his audience?) He describes five to six hundred wigwams, perhaps 1,500 men, and thousands of dogs following in the “train and company of women,” each one that is large enough, and not too cunning to be enslaved “encumbered with a car or sled … on which he patiently drags his load—a part of the household goods and furniture of the lodge to which he belongs.” It is not all toil, as the dogs are occasionally seen—

“Catching at little bits of fun and glee
That’s played on dogs enslaved by dog that’s free.”

Hind, describing travels in 1859 and 1860, also indicates that managing the dogs was the responsibility of the women:

“The dog is the great stand-by of the squaws, who have to attend to all the duties of the camp, the men employing themselves solely in hunting and fighting. The dogs drag on poles the camp furniture, the provisions, the little children, and all the valuables of the family. It is a very amusing sight to witness several hundred dogs solemnly engaged in moving a large camp. They look wistfully at passers-by, and take advantage of the least want of attention on the part of their mistresses to lie down, or snarl and snap at their companions in the work. They nevertheless obey the word of command with alacrity and willingness if not fatigued.”

Gilbert Wilson records that some tribes, like the Crow, did not use the travois often, and some did not use it at all, instead putting packs on dogs. Mandelbaum says of the Plains Cree, however, that they were not adept as some tribes in the use of horses and continued to rely on the dog travois until the mid-nineteenth century. Audubon describes wolves, or at least wolf crosses, being used for draft work in what is now North Dakota:

"Many of the Assiniboin Indians who visited Fort Union during our stay there, had both wolves and their crosses with the common dog in their trains, and their dog carts (if they may be so called) were drawn alike by both."

That there could be thousands of dogs in a camp is clear from a passage in the journal of H.M. Brackenridge of a journey in 1811, who describes the Osages as having at least a thousand dogs in their camp, so many as to remind him of Virgil’s “fine description of that place of the infernal regions, set apart for the punishment of the wicked.” He notes that children and dogs were inseparable companions in an Arikara village, stating that each family had thirty to forty. The Arikara had societies named after animals, but the “band of dogs is considered to be the most brave and effective in war, being composed of young men under thirty.” Hind (1860) records one division of a tribe having 900 people, 600 horses, 200 oxen, 400 dogs, and one cat.

Despite having so many dogs, Mandelbaum states that each dog was trained to answer to its name. Names were often descriptive of a dog’s coat or markings: curly dog, black eye, black ear, black dog, black and white dog, shaggy dog.

Dog Sacrifices and Dog Meat

Mandelbaum relates a ceremony of the Cree intended to secure supernatural aid against sickness:

“The novices who were to be initiated were each told to bring a dog to the long lodge where the ceremony was held. The mite-wiwin leader came out to meet them. His body was painted red and he wore two otterskin armlets. He carried a sacred club, carved or inscribed with animal figures. At the entrance to the lodge, the novices lined up, holding their dogs leashed on rawhide thongs. Four songs were sung by the members and then the leader struck and stunned each dog with his club. Before delivering the blow he feinted at striking three times. The server grasped each dog by the head and by the tail, and, holding it before him, brought it into the lodge. The dogs were stretched out one behind the other. Songs were sung again and then the server took the dogs out to give them to the women who were to cook the meat.”

Dogs were often fed to honored guests. Visiting a busy Mandan village, Catlin comments on the dogs:

“With all this wild and varied medley of living beings are mixed their dogs, which seem to be so near an Indian’s heart, as almost to constitute a material link of his existence.” During his stay with the Mandans, Catlin was initiated into a society, the Conjurati, which involved a dog being sacrificed and hung by its legs over his wigwam. Catlin later says that if a horse or dog is sacrificed, “it must be the favourite one.”

Catlin describes a Sioux dog feast, where the dog meat is cooked in “a sort of stew,” sending “forth a very savoury and pleasing smell, promising to be an acceptable and palatable food.” He describes the reaction of the Europeans at the feast:

“Each of us civilized guests had a large wooden bowl placed before us, with a huge quantity of dogs' flesh floating in a profusion of soup, or rich gravy, with a large spoon resting in the dish, made of the buffalo's horn. In this most difficult and painful dilemma we sat; all of us knowing the solemnity and good feeling in which it was given, and the absolute necessity of falling to, and devouring a little of it. We all tasted it a few times, and resigned our dishes, which were quite willingly taken, and passed around with others, to every part of the group, who all ate heartily of the delicious viands, which were soon dipped out of the kettles, and entirely devoured; after which each one arose as he felt disposed, and walked off without uttering a word. In this way the feast ended, and all retired silently, and gradually, until the ground was left vacant to the charge of the waiters or officers, who seemed to have charge of it during the whole occasion.”

Yet Catlin insists on the value of the dog to the Indians:

“The dog, amongst all Indian tribes, is more esteemed and more valued than amongst any part of the civilized world; the Indian who has more time to devote to his company, and whose untutored mind more nearly assimilates to that of his faithful servant, keeps him closer company, and draws him nearer to his heart; they hunt together, and are equal sharers in the chase—their bed is one; and on the rocks, and on their coats of arms they carve his image as the symbol of fidelity. Yet, with all of these he will end his affection with this faithful follower, and with tears in his eyes, offer him as a sacrifice to seal the pledge he has made to man…. The dog-feast is given, I believe, by all tribes in North America; and by them all, I think, this faithful animal, as well as the horse, is sacrificed in several different ways, to appease offended Spirits or Deities, whom it is considered necessary that they should conciliate in this way; and when done, is invariably done by giving the best in the herd or the kennel.”

The painting shows the pots holding the dog stew at a Sioux feast. Catlin was wrong about all tribes conducting dog feasts, though many did. Cummins (2002) states that the Arapaho feasted on dogs enough to be called “Dog Eaters” by other tribes, whereas the Blackfeet had a strong aversion to eating dogs, though they would occasionally do so if starvation threatened. Mandelbaum says that eating dogs “marked an occasion as extraordinary.” Hind reports that among “Crees, Ojibways, Swampya, and Sioux, the dog is supposed to be the most acceptable sacrifice to offended deities, five dogs being the common number for a propitiatory offering.” At another point he says that among the Indians of the Saskatchewan Valley, “the customary offering consists of two, three, and sometimes five dogs.”

Lest it be thought that Europeans in America did not eat dogs, it is to be remembered that on an expedition through Peru, Gonzalo Pizarro and his men ate almost a thousand dogs to avoid starvation.

Hidatsa Dog Culture

One of the most detailed studies of a dog culture was that of Gilbert Wilson. From 1908 to 1918, Wilson spent two months each year among the Hidatsa, researching and collecting for the American Museum of Natural History. The Hidatsa are a Siouan tribe living in North Dakota and speaking a language akin to that of the Crow. They were allied with the Mandan, who taught them to plant corn. In sign language, according to Wilson, the sign for “Hidatsa” is a motion as of shelling corn from an ear.

Wilson recorded that for the Hidatsa the dog was still an important beast of burden, whose care and management was left to women. One woman in particular, Maxidiwiac or Buffalo Bird Woman, who spoke no English, was the source of most of Wilson’s information. She felt that “horses did not learn to know their names as did dogs, nor do I think they are as intelligent as dogs.” The first drawing from Wilson’s book shows an unconscious dog being revived by a woman, probably after the dog choked when eating too fast, as well as two dogs of her tribe.

Buffalo Bird Woman described her tribe’s dogs:

“In old times, our packing dogs were about the size of a timber wolf. Our old dogs looked a good deal like wolves; though they had much broader faces and had strong, firm legs. The tail was usually bushy but was sometimes quite short or nearly wanting.”

Dogs in a litter would be killed if it did not appear that they would grow big enough for work:

“In order that the mother might stay in good condition, we never saved more than three or four puppies out of any litter. When there were too many to nurse, the mother became poor in flesh, very often grew weak and sometimes died. Of the three or four puppies saved, we might choose one bitch and the rest males.”

A ritual determined if a dog would be strong enough for the travois:

“After they were ten days old, puppies began to eat food that we gave them; but before we fed them, we smoked them. We burned some of the larger kind of sage on some coals, and I, or someone of the family, held a puppy with his head in the sage smoke until white saliva, like soapsuds, dribbled from his mouth. Then I took the puppy from the smoke. Lifting him up, I said, ‘I want to test this dog to see if he will carry a tent’ and then let him drop a few inches to the ground. If the dog fell over, I knew he would not grow up strong, but if he held his place and did not fall, I would say, ‘Hey! hey! this dog will carry my tent.’”

Male dogs were castrated at about a year old to keep them fat and content to stay around the lodge. Dogs were allowed on the roofs of lodges, but not inside unless it was very cold. Kennels were built for females before they delivered a litter. The figure from Wilson’s book shows drawings of a puppy being held over smoke and two types of kennels.

It took about four days to train a dog to drag a travois. Buffalo Bird Woman said to Wilson:

“At first, when he was hitched to the travois and called by name, he struggled and whined with fear, but the woman coaxed and called to him, until he started toward her. The first three days the woman tied a thong around the dog's neck collar and led him. By the fourth day the dog had learned and would follow his owner. For the first trip very little wood was loaded on the travois, but the amount was increased from day to day until the dog could drag a full load. Some dogs were much stronger than others and could carry a much larger load. We always knew which dog to load the heaviest.”

Wolf Chief told Wilson about how dogs were trained to drag tent poles:

“Before a dog was made to drag tent poles, a light load of something that was not fragile, like a robe or a few blankets, was bound down over the travois and then the travois was harnessed to the dog. As dragging tent poles was heavy work a good strong dog was chosen …. The poles, ten, twelve, or thirteen in number, were strung together by a thong through holes pierced at their smaller ends. Then the tent poles were fastened at, or near, the fork, the smaller ends of the tent poles projecting about two feet beyond the dog's head. The tent poles were then spread out over the travois basket and bound down. A big tent might have poles six paces long. Stich poles, when bound to the dog travois, might extend three feet beyond the dog's head….”

A top view of a dog pulling a tent, along with the use of travois to form a tent, and a buffalo paunch are shown in the figure from Wilson’s book. Dogs also pulled buffalo meat on a travois, about a quarter of a buffalo per dog, though other accounts say a dog could pull half a buffalo.

Water was carried for dogs in buffalo paunches in warmer weather. In winter they could eat snow. Although many accounts mention dogs being beaten, Wilson records that Buffalo Bird Woman said that “we never whipped our dogs.” Women collected the wood and used dogs to bring it back to the village. Three women could load about 20 dogs by noon, according to Wolf Chief. “One or more women with fifteen or twenty dogs could bring in enough wood to last the family a month, I think, but a family with only four or five dogs would have to go out every week.”

Buffalo Bird Woman told Wilson that dogs were not used to pull sledges by the Hidatsa, nor were they used in hunting or in herding the horses. The Hidatsa dogs did carry boats for hunting expeditions. The dogs were helped in crossing water with a travois, according to Buffalo Bird Woman:

“If our dogs needed to cross a creek too deep for them to ford easily, one of the men waded into the water and held the rear end of the travois out of the water while the dog swam across…; in this way, the objects carried on the travois basket were kept dry. The man raised the two ends of the travois poles very much as a white man lifts the handles of a plow.”

If a party crossed a river in a boat, the dogs sometimes swam after, but were sometimes in the boat.

The Hidatsa stopped using the dog travois about 1879. The end of the large buffalo herds and the reservation system were by then eliminating an entire way of life.

Superstitions

A dog digging a hole against a lodge might be killed because it was believed that “if a dog dug outside at the foot of the lodge roof, some member of the household was going to die.” If a dog howled alone, not with the other dogs, it was a sign that he was sorry for something that was about to happen to the household. Buffalo Bird Woman told Wilson:

“At night, when the dogs barked and whined the people would say, ‘Ghosts are around. The dogs are talking with them. They can see ghosts with their eyes.’”

Hind, traveling on the Canadian plains, says the “midnight howl of three or four hundred dogs is an awful and appalling sound. It rises suddenly from a low prolonged whine to a deep melancholy howl….”

Mandelbaum records a saying among the Cree: “When dogs are seen to play during bad weather, good weather will soon follow.”

Unfortunately, much of the wisdom of the dog cultures was not recorded.

Cheyenne Legends

Legends indicate that many Great Plains peoples saw the dog as with them from the beginning of their cultures. John H. Seger (1934) records that the creator of the Cheyenne, Great Medicine, showed them the buffalo, but they had no way to follow the buffalo. There were no horses yet so the Cheyenne captured young wolves or wild dogs and raised them to guard their camps. They packed their equipage on the dogs when they followed the buffalo south in the fall.

George A. Dorsey (1905) describes the importance of dogs to the Cheyenne, shown here moving north to follow the buffalo. Dorsey includes another story about how dogs helped bring the buffalo to the Cheyenne. A medicine man goes off with a chief’s wife under instructions from Great Medicine:

“A day and a night and a day the medicine-man traveled with the woman, whose five dogs carried the tipi poles and the camping paraphernalia. The second night they rested. The medicine-man directed the woman to erect the tipi so that it would face the east, and to make two sage brush beds. Then he told her that he had received a message from the Great Medicine of the Above that he should go and bring to his people the Great Medicine-Lodge, the Great Medicine's symbol of the ancient world, with the promise that, if the people would receive the ceremony, buffalo and all other animals would make their appearance, all vegetation would be renewed, and there would be an end to famine….

“[T]hey journeyed for several days until they saw before them a forest, from whose midst there arose a mountain to the sky; beyond they saw great waters…. On a beautiful morning they came to a large rock in front of the mountain. They rolled the rock aside, and found a passage, which they entered. When they had entered the rock rolled back in its place and closed them in. They were in the great lodge of the mountain. The spectacle was wonderful. To-day the lodge is arranged in the same way. There the medicine-man and the woman received ceremonial instruction from the Great Medicine, and from the Roaring Thunder, who talked to them from out the top of the mountain peak…. For four days the Great Medicine taught them, and thus he spoke:

“‘From henceforth, by following my teachings, you and your children shall be blessed abundantly; follow my instructions accurately, and then, when you go forth from this mountain, all of the heavenly bodies will move. The Roaring Thunder will awaken them, the sun, moon, stars, and the rain will bring forth fruits of all kinds, all the animals will come forth behind you from this mountain, and they will follow you home. Take this horned cap to wear when you perform the ceremony that I have given you, and you will control the buffalo and all other animals. Put the cap on as you go from here and the earth will bless you.’

“The medicine-man and the woman came forth from the mountain, and as they stepped out the whole earth seemed to become new, and there came forth buffalo that followed them…. As they marched on, preceded by their dogs, the other animals moved along behind them, and they watched the man and the woman continually from the rear. When they camped at night the animals lay down to rest. In the morning the medicine-man put on his horned cap, and sang the sacred songs taught him while in the mountain, and then he began the journey home, and the animals followed. For many days they traveled, until the medicine-man knew that they were near the camp of his people, who were still by the beautiful stream. Then he halted, took his horned cap from his head, and all the animals halted. In the morning he went to the camp of his people, and told them that he had returned with the buffalo, so that they should no longer suffer from hunger. He at once ordered that the Great Medicine-Lodge dance should be' performed, exactly as it was taught him in the mountain. When the Cheyenne saw the medicine-man wearing the horned cap, they named him ‘Erect Horns,’ for when he wore the cap the horns stood erect.”

Dorsey’s sketch shows the medicine-man and the woman leaving the mountain, with the dogs dragging travois. Cummins similarly reports that legends about how game came to a people often involve dogs.

Conclusion

Dog cultures change from many of the same pressures that alter human cultures. Molossians, for instance, may have arrived in Mesopotamia through war or trade, and likely reached Egypt centuries later through such cultural interactions. Blending can be violent, and wholesale, as happened with the European conquest of the Americas. There is no single story here, however, since what happened in North American was very different from what happened in Central and South America.

As noted in a prior blog, partially domesticated fox-like canids used by some cultures in South America were completely displaced by the arrival of the conquistadors with their war and hunting dogs. Yet hunting dogs became a part of daily life by the 17th century as Spanish and native cultures blended. In North America, horses that escaped from the explorers were soon being used by the native Americans, and began to replace the dog as the primary beast of burden, though some tribes long continued to use the dog travois. European dogs also interbred with the native dogs, so that even early travelers were told that the dogs did not look as they used to.

When reading the accounts of the travelers and anthropologists who traversed the Great Plains while the native cultures still thrived, or carried recent memories of thriving, it must always be remembered that these reporters brought their cultural assumptions about dogs with them. In the Old World, the dog had in most places ceased to be ergonomically necessary for survival, and hunting had for millennia been more often been a luxury than a necessity. Sighthounds in prehistoric times in the Near East and Europe may have been important for survival (perhaps, for instance, driving great numbers of gazelles into desert kites), but by historic times dogs provided advantages in protection and war that became more important for the survival and success of a goup than their value in hunting. American dogs were never significant in war beyond alerting to intruders. The dogs of the Great Plains were, on the other hand, essential to the survival of the tribes that followed the buffalo, and a group could have only tolerated hundreds of dogs, which must share in the meat, because they could not have lived without them.

Thanks to Richard Hawkins, Brian Duggan, Kim La Flamme, L.E. Papet, and Eric Krieger for sources and suggestions.

Sources:
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27. Winship, G.P. (1896). The Coronado Expedition 1540-1542. Government Printing Office, Washington.

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

2012-01-17T13:37:00.054-05:00

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

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

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

Classification of Western Great Lakes Wolves

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

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

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

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

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

Sizes of Wolf Populations

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

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

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

Environments in Which Wolves Can Survive

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

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

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

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

Livestock Depredation

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

Comments on Proposed Rules

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

Conclusion

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

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

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

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

2012-01-07T09:32:00.055-05:00

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

Incident at Staten Island Restaurant

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

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

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

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

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

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

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

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

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

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

Degregorio’s Rights Violated

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

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

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

Penalty Findings

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

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

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

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

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

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

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

Appellate Court Considers Attorney’s Fees

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

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

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

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

Conclusion

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

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

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

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

2012-01-02T22:30:00.063-05:00

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

Lovejoy and Bandit

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

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

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

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

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

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

Maricopa County Sheriff Investigates

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

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

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

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

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

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

Recklessness Issue

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

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

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

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

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

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

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

Arpaio’s Press Conference

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

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

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

Arizona Association of Chiefs of Police

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

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

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

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

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

Lovejoy’s Attorney

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

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

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

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

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

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

A. Yes.

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

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

A. Yes.

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

Preparation in the County Attorney’s Office

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

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

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

Yet another attorney in the office reached a similar conclusion:

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

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

A Second Prosecutor Assigned

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

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

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

Lovejoy’s Trial

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

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

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

Lovejoy Sues

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

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

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

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

The Problem of the Prosecutor's Independence

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

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

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

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

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

Equal Protection Argument Rejected

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

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

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

Other Cases

That other police departments take canine deaths seriously is indicated by an arrest in Geneva, Alabama, where an officer tried to hide the death of his police dog, trained in narcotics detection and tracking. The police department did not release information about how the dog died, but said the death was not intentional. An informant led the police to the dog’s remains. The officer was charged with killing his K-9, but unlike Lovejoy, he had to post bail of $27,500.

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

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

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

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

Conclusion

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

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

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

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

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

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

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

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

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

“Oh Shit, a Pit Bull!” Did Breed Mythology Kill a Dog During a Police Raid?

2011-12-26T10:11:00.020-05:00

When I get my time machine out of the shop, I’m going to go back 100 years to tell some amazing things to the dog world. I’m going to tell them that where I come from, Great Danes are gentle companions for children and are one of the most cuddly breeds a family can own. I’m also going to tell them that nanny dogs, as pit bulls were sometimes known, will become so hated and feared that they may be shot on sight. Both predictions will seem so ridiculous that I won’t be believed.

A Drug Raid in Columbia, Missouri

Jonathan and Brittany Whitworth, and their son, P.M., lived in Columbia, Missouri. They owned a pit bull terrier named Nala and a mixed-breed dog named Bruno that may have had boxer, bulldog, and even Corgi in his blood. A SWAT team of at least eight officers executed a search warrant on the Whitworth residence on February 11, 2010. A separate officer with the Columbia Police Department videotaped the raid.

Jonathan Whitworth had a history of drug convictions, and had been sentenced to jail for 15 months in 2003. Informers and neighbors told the police that Whitworth was selling marijuana and was attempting to obtain cocaine. Garbage from the Whitworth residence was confiscated, resulting in paper clips that tested positive for THC, the active ingredient in marijuana. The use of a large SWAT team was justified because Whitworth was said by the police to have a history of physically resisting arrests.

On forcing the door, the SWAT team saw—depending apparently on different accounts of team members—either one or two dogs at the threshold or running towards them. Sergeant Schlude, one of the team members, said, “Oh shit, a pit bull.” Officer Cavener fired a shot at the pit bull 1.09 seconds after entry. Cavener expected the dog to retreat and it did.

The Whitworths, in an amended complaint, said that SWAT officers chased one of the dogs into the kitchen. The pit bull was bleeding and running around the kitchen. The court describes what happened next:

“[Officer] Fox shot the pit bull because he recognized it to be a pit bull and because it was running at his legs and not stopping. Two other officers fired at the pit bull around the same time. One of these officers was Quintana, who stated in his report that he fireed one round at the pit bull because he believed the dog was going to attack him. Officer Quintana had noticed the pit bull with its ears pinned back and postured in an aggressive manner, although he did not testify that it growled, barked, or approached him. Quintana was in close proximity with the pit bull at this point. Officer Horrell observed that right before the officers shot the pit bull, the pit bull had run into a sliding glass door and had gotten up and began to scamper. Horrell later examined the other dog, Bruno, and observed blood on his leg.” (emphasis added)

The court then shifts its attention to Jonathan Whitworth:

“When the first SWAT officer encountered Mr. Whitworth, the officer ordered Mr. Whitworth to get on the ground and put his hands behind his back. Mr. Whitworth got on the ground but put his hands behind is head. Officers told Mr. Whitworth a second time to put his hands behind his back. As Mr. Whitworth went to move his hands behind his back, Officer Hendrick's foot made a single contact with Mr. Whitworth's face and shoulder for the purpose of getting Mr. Whitworth to put his arms behind his back…. The parties dispute whether this contact can correctly be characterized as a kick, but the Court views it as one for purposes of this motion. This kick caused Mr. Whitworth pain, but resulted in no bruising, broken bones, or broken skin, and Mr. Whitworth never received medical attention as a result. Mr. Whitworth was cursing during this altercation, in a manner that Schlude took for aggression.”

Brittany Whitworth went into a bedroom with her son and closed the door. An officer opened the door and ordered her to the front of the house. “Mrs. Whitworth asked if herself and P.M. could move positions to avoid the sight of their deceased dog, and officers brought them outside and into the back of a police car…. Officer Clements entered the police car and whispered to Mrs. Whitworth that one dog was dead and the other had been shot in the leg. Mrs. Whitworth asked for the police car to be moved forward so her and P.M. could not see Nala's body brought out of the house, and Clements complied.” (The ungrammatical use of reflexive pronouns by the court presumably reflects the wording of witnesses.)

Subsequent events of the day primarily described Brittany Whitworth:

“Mrs. Whitworth and P.M. were in the police car for two hours. P.M. was sobbing while in the police car. Mrs. Whitworth asked if her mother-in-law could come pick up P.M., but Clements refused. Police Officers instructed Mrs. Whitworth to leave the car at four different times, and supervised her each time she left. The first time, Detective Rukstad asked Mrs. Whitworth if she had any questions, and she asked Rukstad to tell P.M. that Nala was alive and being taken to be a police dog, with which Rukstad complied. The second time, Mrs. Whitworth went to her garage to get a mop. This was her longest absence from the police car, at seven to ten minutes. The third time, animal control arrived and informed Mrs. Whitworth that they had removed Nala's body and would be taking Bruno for medical attention. The fourth time, Mrs. Whitworth went to the master bedroom to wrap Bruno, who was bleeding in its paw, in a blanket for herself and animal control to carry out of the house.”

Lawsuit Against Columbia Police Officers

Brittany Whitworth filed claims in federal district court under 42 U.S.C. 1983 and Missouri state law. Section 1983 provides for civil redress for deprivation of rights under state law. The court said it had to look at the circumstances “from the viewpoint of a reasonable officer on the scene with knowledge that Mr. Whitworth had a history of resisting arrest,” and held that such an officer could reasonably ensure that “the wounded dog still on the premises did not attack officers in an attempt to defend the Whitworths … [and remove] the Whitworths' dogs—one alive and one deceased—from the Whitworth residence while allowing Mrs. Whitworth to accompany P.M. when possible and while keeping P.M. away from seeing the dogs.”

As to pointing guns at the Whitworths, the court stated:

“The Court agrees that ideally officers would execute search warrants without pointing a gun at women and children not suspected of committing a crime. On the other hand, where officers are aware that a dangerous suspect and two large dogs are on the property, a reasonable officer could, in the heat of the moment, rely on such tactics to prod individuals to move swiftly through a potentially dangerous situation. This is especially true, where shouting and gun-pointing occurred as Mrs. Whitworth and P.M. stepped over Mr. Whitworth—who was lying on the floor—and the danger of resistance by any of the Whitworths was arguably at its highest. In this context, the behavior alleged by the Whitworths did not violate a clearly established constitutional right.”

The court also rejected an unreasonable seizure argument based in part on an analogy to a case in which an officer shot a family dog standing near its owner when responding to a call about a stray dog. Andrews v. City of West Branch, 454 F.3d 914 (8th Cir. 2006) (discussed in Police and Military Dogs). The court, referring to Andrews, stated:

“[T]hat cased involved an officer who—while investigating a call about a stray dog—shot and killed, without provocation, a family dog in an enclosed yard that was standing within feet of its owner…. But the present case, even viewing facts in the light most favorable to the Whitworths, involves a large dog standing its ground in the doorway that a SWAT team is about to enter, or running around a kitchen toward police officers. Even if the Whitworths' dogs were not acting aggressively, the Whitworths have not produced evidence that either of their dogs “presented no danger and [that] non-lethal methods of capture would have been successful.”… Rather, these dogs, simply by standing their ground or running excitedly in the path through which the officers needed to quickly pass to secure the scene, stood to frustrate the officers' important objective of securing and searching the house, and presented a risk of attack to passing officers that was great enough to justify a reasonable officer in incapacitating the dogs. The bullet holes in the Whitworths' property are incidental to officers firing at the Whitworths' dogs, so they require no separate analysis for reasonableness.

“Further, even if the officer Defendants did violate the Whitworths' rights in shooting their dogs, the Whitworths have not shown that this was a clearly established right. The requirement that the right violated be clearly established 'operates to protect officers from the sometimes hazy border between excessive and acceptable force, and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful.' Samuelson v. City of New Ulm, 455 F.3d 871, 877 (8th Cir.2006) (internal quotes omitted). Federal courts have spoken little about how dogs fit into the analysis of unreasonable seizure under the Fourth Amendment, as evidenced by the scant applicable precedent cited by the parties. Dogs easily qualify as property that can be unreasonably seized by the state, but they also contain a latent threat to human safety that has rarely been weighed under the Fourth Amendment's objective-reasonableness standard. Although some dogs are friendly, others are bred and trained to kill, and dogs of either sort can be unpredictable both in their actions and in the signals they send. This unpredictability can increase if a dog is wounded or its owners are being subdued. The reasonable officer would consider all of this when forced into close proximity with a strange dog by the exigencies of executing a search warrant on a dangerous suspect. The Whitworths cite a Missouri statute outlining the legality of a civilian killing a dog in self-defense, but that would not put a police officer on notice of the constitutional boundaries of subduing a large dog in a quickly changing situation such as this one. Because any constitutional right violated by the officer Defendants in shooting the Whitworths' dog was not clearly established, the officer Defendants are entitled to qualified immunity on this claim.”

The Whitworths also argued intentional infliction of emotional distress in the shooting of the dogs in the presence of their owners. The officers were granted summary judgment on this because the conduct was not intended solely to cause emotional distress to the Whitworths.

Summary judgment was granted to the officers on all counts. Whitworth v. Bolinger, 2011 WL 5838406 (W.D. Mo. 2011).

What Really Happened?

The court's description of the events does not bring us into the Whitworth home as if the testimony could substitute for a hand-held camera. Although the raid was videotaped, I have been unable to find any posting of this video. Some of the description suggests the dogs were trying to escape the gunfire, not run towards it. The stories of the participants naturally support their respective interests, and it is not surprising that the court gave the benefit of the doubt to the police. Nevertheless, the use of the SWAT team and the bin Laden-type raid seems a bit excessive. Jonathan Whitworth, if having enough trouble finding cocaine to sell that the police heard about it, was at most a relatively low-level dealer. Meanwhile, Brittany Whitworth labored mightily to keep the whole incident from permanently scarring her son.

The Whitworths, however, cannot claim complete innocence in the fate of poor Nala. Pit bulls bring out the worst in some people, both those who own them and those who fear them. This is not the fault of the dog, but rather a result of an unfortunate and, given the history of the nanny dog, often inaccurate image in contemporary culture. Engaging in activities that interest the police, if this is what was going on, is likely to put the pit bull in danger, without affording any real protection to a family (unless it is to scare others besides the police).

For a time I made it a habit of suggesting to owners of pit bulls that they might reduce resistance in housing and other disputes by referring to their dogs as American Staffordshire Terriers. Then one day at a local pet store, I heard a man bragging about the fear his pit bull engendered in his guests, which he saw as amusing, and I made my usual, invariably unappreciated, recommendation that there would be less fear if he called the dog a Staffordshire. Clearly irritated, he more mumbled than spoke: “I want them to know it’s a pit bull.”

There is too much of this. The police invading the Whitworths’ home had bought the myth, just as have city councils and other legislative bodies adopting anti-pit bull legislation. The laws are at least as much about the owners as they are about the dogs. We don’t want your kind, and we don’t want the dogs of your kind.

A recent paper reported on survey results of individuals who adopted pit bulls and similar-sized dogs of other breeds from an animal shelter in British Columbia. The study followed 40 pit bulls and 42 dogs of other breeds. Three of the pit bulls and two of the other dogs had to be euthanized at the shelter for aggression. The remaining 77 dogs were given homes. One pit bull and ten dogs of other breeds were returned to the shelter because of “alleged aggression.” Whether this meant the pit bulls were actually less aggressive is not clear. Pit bull adopters were more likely to be under age 30 and may have been more accepting of aggression, or may have even wanted it. Nevertheless, for dogs that were retained for at least two months, owner reports of aggression were similar for pit bulls and non-pit bulls. The authors concluded that their study “provided no evidence of greater aggression or poorer care among adopted pit bulls compared to dogs of other breeds.” MacNeil-Allcock, A., Clarke, N.M., Ledger, R.A., and Fraser, D. (2011). Aggression, Behavior, and Animal Care Among Pit Bulls and Other Dogs Adopted from an Animal Shelter. Animal Welfare, 20, 463-8.

That the owners are responsible for the modern imagery of pit bulls is emphasized in a paper that surveyed 754 college students regarding the breeds they had chosen. The focus was on six breeds: Akitas, Chows, Dobermans, Pit Bulls, Rottweilers, and wolf mixes. The questionnaire the students filled out was intended to assess the type of dog owned, criminal thinking, callousness, personality, alcohol usage, and deviant lifestyle behaviors. The authors of the paper found that “[v]icious dog owners reported significantly higher criminal thinking, entitlement, sentimentality, and superoptimism tendencies. Vicious dog owners were arrested, engaged in physical fights, and used marijuana significantly more than other dog owners.” They concluded that “[c]hoosing to own a vicious dog may be a ‘thin slice’ indicator of more antisocial tendencies.” Schenk, A.M., Ragatz, L.L., and Fremouw, W.J. (online 2011), Vicious Dogs Part 2: Criminal Thinking, Callousness, and Personality Styles of Their Owners. Journal of Forensic Sciences (DOI: 10.1111/j.1556-4029.2011.01961.x).

Conclusion

I occasionally get emails and calls from readers of Service and Therapy Dogs in American Society asking what I consider the ideal breed for therapy dog work. I generally ramble on a bit about my personal predilections, but try to avoid recommending almost any specific breed or mix. However, I usually caution against getting a breed that is going to frighten people. It adds complexity to first interactions. When challenged, I always admit that one of Michael Vick’s pit bulls became a therapy dog. Unfortunately, the reaction of some people to a dog, particularly on first seeing it, will depend on general social attitudes, and pit bulls too often raise the kind of fear expressed by the policeman in the Whitworth case. “Oh shit, a pit bull.”

In this way I have to admit that I am guilty of perpetuating a myth I regard as unfortunate, even offensive. Frankly, I wish that criminals would favor teacup poodles. They would provide as much defense as other breeds—probably more, since their nervousness would better guarantee advance warning of intruders—and they would be much less likely to bring unnecessary gunplay into a police raid.

Thanks for suggestions from Fran Breitkopf and L.E. Papet.

Darwin, Hamilton Smith and the Lost Domestications of South America

2011-12-18T13:47:00.196-05:00

Theories of canine domestication are beginning to take into account partial domestications of wolves, such as the 33,000 year old skeleton from a Siberian cave described by Ovodov et al. (2010), and the skull from a cave in Belgium described by Germonpre et al. (2009). Ovodov et al. argue:

“Since dog domestication almost certainly occurred multiple times without direct human selection, we suggest that it must have occasionally failed. That is, the particular set of ecological conditions associated with human settlement and hunting practices that were necessary to initiate the domestication process must have, on some occasions, existed only long enough to produce a few modified wolves (i.e., incipient dogs) with short-lived lineages.”

These researchers suggest that “ecological changes caused by progressive cooling almost certainly caused social and settlement pattern changes severe enough to have disrupted the domestication process and prevented evolution of fully domesticated dogs.” They see their results as supporting a multiple-domestication-events hypothesis for Canis familiaris.

That domestication could occur within the canid family, the Canidae, but outside the genus Canis, was demonstrated by the work of of Belyaev (1979) and his students, particularly Trut (1999), who artificially domesticated silver foxes (Vulpes vulpes), through selective breeding over 30 to 35 generations. The experiment, which continues, left open the question of whether foxes could be domesticated outside of such an experimental environment.

In the 1830s, Charles Hamilton Smith observed canids in South American that were living with indigenous peoples and performing some domesticated functions for them. In one instance, Smith suggested that some apparently different species might actually be tame and wild versions of a single species, raising the possibility that some physical differences could have begun to occur because of the domesticated state. Recent research on pointing gestures with a South American canid closely related to some of the species observed by Smith may also indicate that these lost domestications involved more behavioral change than has previously been recognized.

South American Canids Described by Naturalists in the 19th Century

Charles Hamilton Smith, after discussing the maned aguara (labeled Chrysocyon jubatus by Smith but now generally called Chrysocyon brachyurus) the largest of the South American canids he had encountered, makes some general remarks regarding the animals he will discuss in the following chapters:

“South America, when first discovered by the Spaniards, was possessed of canines absolutely indigenous, some universally wild and others liable to be partially reclaimed; all more nocturnal than the former dogs and less so than the true foxes.”

The first plate is Smith's depiction of the maned aguara. (Double click to enlarge image.) Smith suggests that the name aguara (sometimes transliterated as warrah), attached to so many of these species, may come from the sound they make, “a loud and repeated drawling cry, sounding like a-gou-ā-ā-ā, which is heard to a considerable distance.” (Smith's drawing does not show the ratio of leg length to torso size apparent in pictures of maned wolves, suggesting they may not have been seen often at close range.)

Genetics research, as will be discussed later, has recently indicated that some of the South American canids had a North American origin, but the biological significance of the formation of the isthmus of Panama, the Great American Interchange, was not yet understood. Smith says the maned aguara, the first plate included here from Dogs: Canidae or Genus Canis of Authors, was wild, but records that he had seen various levels of domestication in the other canids:

“Several can be sufficiently tamed to accompany their masters to hunt in the forest, without however being able to undergo much fatigue; for, when they find the sport not to their liking, they return home to await the return of the sportsmen. In domesticity they are excessive thieves, and go to prowl in the forest. There is a particular and characteristic instinct about them to steal and secrete objects that attract their attention, without being excited by any well ascertained motive. All subsist upon the usual food of the wild canines, but with the addition that they eat also fish, crabs, limpets, lizards, toads, serpents, and insects. They are in general silent and often dumb animals; the cry of some is seldom and but faintly heard in the night, and in domestication often learn a kind of barking. None appear to be gregarious, but several are occasionally encountered in families. Although in company with man, the domesticated will eagerly join in the chase of the jaguar, we have never heard that they are in the same state of hostility towards feline as are their congeners in Asia and Africa.”

Smith then states that in the 35 years before completion of his great study of dogs, the natives of South American had shown a distinct preference for European dogs, so that it was by 1839 difficult to find any indigenous dogs associated with them “even in the more remote parts of the interior.”

Hoary Aguara Dog/Fox

The hoary aguara dog was labeled Dusicyon canescens by Smith, but is now generally put in a more fox-like genus and classified as Lycalopex vetulus or Pseudalopex vetulus. He had seen the animal domesticated among the Indians of Brazil, who told him that it remained wild in some areas. Smith described the animal in detail, explaining that he had looked in the mouths of some of the domesticated animals, seeing a black palate as was the edge of the lower lip.

Dalponte (2009) reports the hoary fox is widespread in Brazil and may perhaps be found in Bolivia. It is not threatened with extinction. Courtenay et al. (2006) studied the behavior of the hoary fox, finding that a breeding pair reared a single litter of five offspring per year. The pair associated with no other adults and the offspring dispersed at about ten months of age, the young dogs establishing home ranges adjacent to natal territory. The male adult “acted as chaperone to the foraging offspring, mostly in the absences of the breeding female.” Their diet is mostly made up of termites and dung beetles.

Aguara Dog of the Woods/Surinam Aguara Dog

Smith refers to some Indians having domesticated the aguara dog of the woods, to the left, which he classified as Dusicyon sylvestris, the same classification he places under the heading of the Crabodage, or Surinam Aguara Dog, making a curious reference to “the same species in the wild and domestic states.” He mentions one semi-domesticated specimen obtained from the Indians by the French naturalist, George-Louis Leclerc, Comte de Buffon (1707-1788). Smith gives no details as to the nature of the domestication in his two entries regarding these animals.

Guaraxa Aguara Fox

Smith refers to an “almost insensible degree” of distinction between the Aguara Dogs and the Aguara Foxes, the latter of which are “more completely vulpine, having tails with brushes even larger and longer than those of true foxes.” He says that they “can be domesticated, and it is believed will form cross breeds with Dusicyon and Canis familiaris.” The Guaraxa Aguara Fox, which he labels Cerdocyon guaraxa, “barks, lives on terms without restrain when brought up in the house,” and can be used in hunting “though with but indifferent docility.”

“It is to this species in particular we allude when remarking upon the singular propensity manifested by them to steal and secrete particular objects: bridles and pocket-handkerchiefs have been carried off in this manner, and subsequently found in bushes at some distance.” Smith saw them often chained because of the tendency to eat chickens.

Crabodago Aguara Fox

Smith labels the crab-eating fox Cerdocyon Azarae, but acknowledges the classification, Canis Azarae, given by Prince Maximilian of Wied. The consensus classification at present appears to be Cerdocyon thous azarae. He notes that this type was “represented in the Zoology of the Beagle.” Part of the description of the Guaraxa Aguara Fox is placed under the description of this animal, and may apply to its partially domesticated state as well.

Slater et al. (2009) find that the crab-eating fox and the hoary fox (Lycalopex vetulus) are separated by perhaps a million years, making interbreeding quite possible. They also estimate, however, that the South American canids are separated from the Canis genus by over 10 million years. All of the South American species except the maned wolf, the bush dog, and the Falkland Islands wolf are depicted by this team as having common ancestry about 5 million years ago.

Schwartz (1997) notes a report on interbreeding of a South American canid with domestic dogs, though the species of the canid is not certain:

“The Makusi of Guiana had domestic dogs but would also adopt a wild canid called a maikong. This ‘wild dog’ probably was a crab-eating or pampas fox. A tame maikong was the most treasured possession of the Makusi. It was fed cooked flesh, fish, and ripe plantains. The Makusi said they liked to breed the maikong with their domestic dogs because the offspring make the best hunting dog. In 1925 a female pampas fox reportedly gave birth to two litters fathered by a fox terrier hybrid, but such an event must have been extremely rare. South American canids that have been tested have a different karyotype (the diploid number of chromosomes) from dogs and other members of the genus Canis, and the offspring of such crosses would usually be sterile.”

Wang and Tedford (2008) state that the raccoon dog (Nyctereutes) of eastern Asia appears to be closely related to the crab-eating fox.

The Mystery of the Falkland Islands Wolf

Darwin encountered the Falkland Islands wolf on the Beagle in 1833 and 1834:

“The only quadruped native to the island is a large wolf-like fox (Canis antarcticus), which is common to both East and West Falkland. I have no doubt it is a peculiar species, and confined to this archipelago; because many sealers, Gauchos, and Indians, who have visited these islands, all maintain that no such animal is found in any part of South America…. As far as I am aware, there is no other instance in any part of the world, of so small a mass of broken land, distant from a continent, possessing so large an aboriginal quadruped peculiar to itself.”

He noted the boldness of the animal, which would enter a tent and pull meat from beneath the head of a sleeping seaman. The Gauchos had taken to killing them “by holding out a piece of meat in one hand, and in the other a knife ready to stick them.” He noted the rapid decline in their numbers, and suspected, correctly, that they would soon be extinct. They were extinct by about 1876. Decades after visiting the island Darwin still remembered the innocence of the animal (1875, vol. 1):

“It deserves notice, as bearing on other animals as on the dog, that at an extremely ancient period, when man first entered any country, the animals living there would have felt no instinctive or inherited fear of him, and would consequently have been tamed far more easily than at present. For instance, when the Falkland Islands were first visited by man, the large wolf-like dog (Canis antarcticus) fearlessly came to meet Byron’s sailors, who, mistaking this ignorant curiosity for ferocity, ran into the water to avoid them.”

Smith called the animal the Falkland Islands Aguara Dog, and thought it similar to a coyote (Lysiscus cagottis). He related earlier accounts that “the Falkland Island wolf had originally been set on shore there by the Spaniards, with a view to prevent foreign nations finding fresh provisions at the anchorages: the information stated further, that the wolves had nearly destroyed an indigenous fox, and taken possession of its burrows.” Although Smith questioned that the Spaniards were responsible for the presence of the animals, he believed that an indigenous fox could be found on the western island. He had mistaken young for a separate species. Smith cited Louis-Antoine, Comte de Bourganville, who settled Port St. Louis in 1763, as having seen the animal burrowing along the sea and feeding on birds, emitting a feeble bark.

Juliet Clutton-Brock (1977) believed that human agency would have to explain the presence of the unique wolf on the Falklands:

“The shortest distance between the mainland and the Falkland Islands is too great (approximately 480 kilometers) to imagine the successful dispersal of this animal to the islands unless taken there by man. Nor is it likely that a single mammalian species, and a large carnivore at that, survived on the islands throughout the Pleistocene when periods of periglacial conditions prevailed.”

Clutton-Brock thus found the Falkland Islands Wolf something of an Atlantic analogue to the Australian dingo and she noted some of the same physical characteristics that suggested prior domestication: “white markings on the pelage, a wide muzzle with large somewhat compacted teeth in the premolar region, and expanded frontal sinuses.”

Slater et al., analyzing nuclear and mitochondrial DNA derived from one of the few remaining pelts, concluded that the closest remaining relative was the South American maned wolf (Chrysocyon brachurus, discussed above).

“Molecular dating analyses suggest that the Falklands wolf and several extant South American canid lineages likely evolved in North America, prior to the Great American Interchange. The Falklands wolf was the sole representative of a distinct South American canid lineage that survived the end-Pleistocene extinctions on an island refuge.”

This team of researchers noted the explanations given for the presence of the unique species on the Falklands, including that of Clutton-Brock and the idea that the animals may have been carried from the mainland by ice or logs. The team concluded that the animal “may have reached the islands by rafting or dispersing over glacial ice during the late Pleistocene and was probably able to survive into the recent past by subsisting on a rich diet of penguins, geese and pinnipeds.”

Human agency in the transportation of wolves to the Falklands has become unlikely, but the paleontological record is sparse and it is not impossible that further finds will make this theory viable again.

Flux in the Taxonomy of South American Canids

In 1931, Cabrera described the confusion in classifying the often similar canids of South America, noting that some naturalists would put most of them in the Canis genus, while others provided for much more separation. Slater et al. suggest that at least “six exclusively South American canid lineages, including the Falklands wolf, originated prior to the formation of a Panamanian land bridge,” and that the “South American canids probably evolved from the fossil taxon Eucyon, which was widespread in North America during the late Miocene [c. 7- 5 million years before present]. The ultimate extinction of South American canid lineages in North America may have resulted from resource competition with Canis, which immigrated to the New World during the late Pliocene [5.3-2.6 million years before present].”

The significance of this research can perhaps be visualized by superimposing some of the findings of Slater et al. on the relevant section of the taxonomic chart of Wang and Tedford. Wang and Tedford's connections are depicted as continuous lines, with Roman type on the side, while Slater et al.'s findings use dotted lines and italics on the side. The separation of the maned wolf and the Falklands wolf in terms of time is not significantly altered by Slater et al., though the connection between the crab-eating fox and the hoary fox is much more recent. Wang and Tedford indicate in one chart (Figure 7.1, p. 140) a connection between the Eucyon line and South American canids, but it appears that they do not see the connection as direct as described by Slater et al. In any case, changes to the current taxonomic arrangement are likely to result from the work of Professor Robert Wayne's group at UCLA and Professor Eduardo Eizirik's group in Brazil. Additional complexity is also added with Prevosti's 2010 phylogenetic study of extinct South American canids.

Pampas Foxes Follow Human Pointing Gestures

Three researchers from the Instituto de Investigaciones Médicas in Buenos Aires looked at communication between humans and the Pampas fox (Lycalopex gymnocercus), similar to earlier pointing gesture research on dogs and wolves. The Pampas fox is, at least for the moment, in the same genus as the hoary fox. Seven foxes, which had been living at an experiment station for at least five years, learned that if they gazed at a human face, they received a food reward. The foxes looked longer at a human's face when a reward was offered, but less so when it was not. Once food was provided again, the animals looked longer again.

Four of the animals that had participated in the first phase were then tested for their ability to find hidden food after receiving human cues. Two opaque containers were used for the choice test. Each had a piece of liver under a false bottom to control for odor cues. Proximal and distal pointing gestures were employed--i.e., gestures in which the arm closest to the correct container pointed, and gestures where the arm crossed the body to point to the correct container. In the former situation, all four foxes performed above chance, while in the latter, three out of four did so.

The researchers concluded that "foxes, an undomesticated species with low socialization to humans, were able to follow human gestures to find hidden food." Since some of the South American canids, at the time that Smith observed them, were living in semi-domesticated states, it seems likely that they would have learned to follow human gestures for a number of purposes.

Dogs Near Coastal Argentina by 1000 AD

Smith noted the preference of Indians for European dogs as a reason for the decline in domestication of the indigenous species, yet recent archeology has found dog burials near the coast of Argentina by about 1000 AD. Prates et al. (2010) note that “the presence of prehispanic dogs in South America has always been associated with complex societies (mainly in Peru and Ecuador) and not with egalitarian hunter-gatherers.” Finds in Peru and Ecuador mostly date from 3,500 years before the present onwards. Yet, this team notes that “some reporters’ and tavelers’ stories from the sixteenth and seventeenth centuries indicate that Patagonian hunter-gatherers already had dogs at the time of the first Hispanic-Indian contacts.”

The team described findings in the north of Patagonia about 100 miles from the Atlantic. The culture used stone tools and dogs were found in an area of continuous occupation. A second burial, about 170 miles away in the Pampas, was in a cemetery, where a “dog was buried intentionally with a 2- or 3-year-old boy, his right arm extended near the dog’s head, in a posture remarkably similar to the famous Natufian burial from Israel. Analysis of the skeletons at these sites indicates they were “somewhat larger than the common Mesoamerican dog,” closer to a Cocker spaniel in size “and similar to a spitz-like breed or a chow chow.”

Conclusions

Except for one curious reference in Hamilton Smith, it appears unlikely that any of the fox-like canids that achieved semi-domestication had separated from wild populations sufficiently to be morphologically or genetically distinguished. The fact that the team working with Pampas foxes found that some animals were too frightened of humans to be tested may indicate that the semi-domesticated canids had to be raised with humans to be put on leashes and handled by humans, and may indicate that this had been going on for generations by the time Smith arrived in South America. Unfortunately, the cessation of any domestication process with the arrival of dogs from either prehispanic or European cultures makes investigation difficult, and absent some exceptional archeology, probably impossible.

Nevertheless, even from Smith one gets the sense of something of a continuum of the fox-like wolves, or wolf-like foxes, that involved a number of species similar in appearance and which might, depending on the environment, be confused with each other. There were undoubtedly subspecies occupying different but sometimes overlapping habitats. Smith's speculations about interbreeding of similar species are likely to have had some basis in fact.

One also gets the sense that before the increase in European dogs, a wide range of indigenous cultures formed relationships involving various degrees of domestication with these animals. They accompanied the hunters, lived in their huts and may have eaten vermin. Their generally limited vocalization would have likely made them of little use as guards and their timid and curious natures may have made them useless in combat with other tribes. (As I noted in a prior blog, if any of the South American canids, including the dogs of the Incas, had had any defensive value, the conquistadors would have had a much harder time.) Still, some connections were formed, but then easily broken when the more devoted, more domesticated dogs arrived.

Do the human-canid relationships described by Smith say anything relevant to the domestication of dogs from wolves? Some of the South American canids do not seem to have had a strong fright response to humans that had to be overcome. Nor is there any evidence that the South American indigenous cultures saw the canids as competitors for the same food. Although mentioned in connection with hunts, the animals do not seem to have been nearly as helpful as hunting dogs, probably because large game was of no interest to them. Humans may have helped them expand their own ranges, however, and may have taken them to places where birds and crabs could be found, along with the large game that interested the humans. When living with humans, they could learn to bark, and may then have had some defensive value, though this seems to have been relatively minimal. The fact that the canids would be tethered to keep them from eating chickens suggests that despite certain disadvantages, they were still considered of value.

The canids had a place in the cultures closer to that of the terrier than the large hunting dogs that are often seen as fitting the needs of Eurasian hunter-gatherer societies. If these South American domestications are to be regarded as failed, as dead ends, it might be suggested that absent the introduction of Spanish and perhaps prehispanic dogs into the cultures involved, something like the artificial domestication of Belyaev’s foxes might have been possible. These domestications of the wolf-fox-like canids may also suggest that different cultures could have different domestication events, that no single cultural prototype explains how domestication can occur.

Sources:
1. Barrera, G., Jakovcevic, A., Mustaca, A., and Bentosela, M. (2012). Learning Interspecific Communicative Responses in Pampas Foxes. Behavioral Proceses, 89, 44-51.
2. Belyaev, D.K. (1979). Destabilizing Selection as a Factor in Domestication. Journal of Heredity, 70, 301-8.
3. Cabrera, A. (1931). On Some Suth American Canine Genera. Journal of Mammalogy, 12(1), 54-67.
4. Clutton-Brock, J. (1977). Man-Made Dogs. Science, 197(4311), 1340-1342.
5. Courtenay, O., Macdonald, D.W., Giolingham, S., Almeida, G., and Dias, R. First observations on South America’s Largely Insectovorous Canid: The Hoary Fox (Pseudalopex vetulus). Journal of Zoology, 268(1), 45-54 (January 2006).
6. Dalponte, J.C. (2009) Lycalopex vetulus (Carnivora: Canidae) Mammalian Species, 847, 1-7.
7. Darwin, C. (1839, 1909). The Voyage of the Beagle. Collier & Son. New York; (1868, 1875). The Variation of Animals and Plants under Domestication, Vols. I and II. John Murray, London.
8. Germonpre, M, Sablin, M.V., Stevens, R.E., Hedges, R.E.M., Hofreiter, M., et al. (2009). Fossil Dogs and Wolves from Paleolithic sites in Belgium, the Ukraine and Russia: Osteometry, Ancient DNA and Stable Isotopes. Journal of Archaeological Science, 36, 475-490.
9. Ovodov, N.D., Crockford, S.J., Kuzmin, Y.V., Higham, T.F.G., Hodgins, G.W.L., and Plicht, J. (2011). A 33,000-Year-Old Incipient Dog from the Altai Mountains of Siberia: Evidence of the Earliest Domestication Disrupted by the Last Glacial Maximum. Plos One 6(7), e22821.
10. Prates, L., Prevosti, F.J., and Beron, M. (2010). First Records of Prehispanic Dogs in Southern South America (Pampa-Patagonia, Argentina). Current Anthropology, 51(2), 273-280.
11. Prevosti, F.J. (2010). Phylogeny of the Large Extinct South American Canids (Mammalia, Carnivora, Canidae) Using a "Total Evidence" Approach. Cladistics, 26,456-481.
12. Scheider, L., Grassmann, S., Kaminski, J., and Tomasello, M. (2011). Domestic Dogs Use Contextual Information and Tone of Voice when following a Human Pointing Gesture. Plos One, 6(7), e21676.1997)
13. Schwartz, M. (1997). A History of Dogs in the Early Americas. Yale University Press. New Haven (picture of Pampas fox on p. 5).
14. Slater, G.J., Thalmann, O., Leonard, J.A., Schwizer, R.M., Koepfli, K.-P., Pollinger, J.P., Rawlence, N.J., Austin, J.J., Cooper, A., and Wayne, R.K. (2009). Evolutionary History of the Falklands Wolf. Current Biology, 19(20), R937-8.
15. Smith, C.H. Dogs, vol. I (1839), in the Naturalists Library, Mammalia. Hengry G. Bohn, London.
16. Trut, L. (1999). Early Canid Domestication: The Farm Fox Experiment. American Scientist, 87, 160-169.
17. Udell, M.A.R., Dorey, N.R., and Wynne, D.L. (2010). What Did Domestication Do to Dogs? A New Account of Dogs’ Sensitivity to Human Actions. Biological Reviews, 85(2), 327-346.
18. Wang, X. and Tedford, R.H. (2008). Dogs: Their Fossil Relatives and Evolutionary History. Columbia University Press, New York.

Thanks to Linda Scheider for directing me to the research of Barrera et al. and to Yva Momatiuk for the link to Tui de Roy's excellent webpage regarding the maned wolf. Thanks to Graham Slater for sending me additional sources. Thanks to Richard Hawkins, Eric Krieger, and Brian Duggan for helpful comments. I would appreciate an email of any suggestions for further investigation of this issue, at jensminger@msn.com.

U.S. Can Learn from Australian Debate over Success Rates of Detection Dogs

2011-12-15T09:31:00.033-05:00

A debate now going on in Australia deserves the attention of those in the U.S. involved in using, and particularly those responsible for funding, detection dogs. While American courts sometimes consider the relevance of a dog’s accuracy rate in prosecutions, there is far less discussion on this side of the Pacific as to whether the overall success rate of drug and other detection dogs justifies their costs. There is also far too little recognition that poorly designed and implemented protocols, procedures, and practices, including inadequate training and continuing education, allow or even encourage false alerts, cueing, violations of individual rights, lawsuits, misuse and mistreatment of dogs, and other consequences that add to the bottom line of canine programs and make them harder to justify to governments and taxpayers.

Success Rates of Drug and Explosives Dogs in New South Wales

The issue was touched off when David Shoebridge, a member of the New South Wales Upper House of Parliament, asked the Minister for Police and Emergency Services the following questions (in italics) and received the answers (in Roman type).

How many complaints about police sniffer dogs were received by the NSW Police Force in the following years:
(a) 2007? 10
(b) 2008? 8
(c) 2009? 9
(d) 2010? 11
(e) 2011 to date? 5

(2) How much money has been paid out by or on behalf of the NSW Police Force or the state of New South Wales in response to legal proceedings relating to police sniffer dogs in the following years:
(a) 2007? $35,000 (Australian dollars)
(b) 2008? $85,000 (plus costs as yet unresolved)
(c) 2009? None
(d) 2010? None
(e) 2011 to date? None to date

(3) What expenses have been incurred by or on behalf of the NSW Police Force or the state of New South Wales defending legal proceedings relating to police sniffer dogs in the following years:
(a) 2007? $19,827.79
(b) 2008? $164,086.78
(c) 2009? None
(d) 2010? None
(e) 2011 to date? $6,671.52

(4) What records are kept of each search by a police sniffer dog? Records are kept in relation to all requests that are received. Each individual search is then recorded on the COPS system in the case of drug detection dogs, and via spreadsheet in the case of firearm and explosive dog searches.

(5) How many searches were conducted using police sniffer dogs in the following years?
(a) 2007? Drug dogs: 7,603; firearm/explosive dogs: 1,160
(b) 2008? Drug dogs: 10,562; firearm/explosive dogs: 1,128
(c) 2009? Drug dogs: 17,321; firearm/explosive dogs: 791
(d) 2010? Drug dogs: 15,779; firearm/explosive dogs: 551
(e) 2011 to date (April 30)? Drug dogs: 6,965; firearm/explosive dogs: 108

(6) How many searches involving a police sniffer dog found any illicit substances in the following years? Only drugs were considered in the answers.
(a) 2007? 2,435
(b) 2008? 3,748
(c) 2009? 5,109
(d) 2010? 5,087
(e) 2011 to date (April 30)? 2,103

(7) How many searches involving a police sniffer dog found indictable quantities of illicit substances in the following years: 2007-2011 to date? The police replied that this information could not be determined from police records.

(8) How many searches involving a police sniffer dog found weapons in the following years:
(a) 2007? 11
(b) 2008? 7
(c) 2009? 8
(d) 2010? 5
(e) 2011 to date? 1

Thus, there were 58,230 searches using detection dogs in the nearly four and a half-year period, resulting in 13,892 drug finds, a success rate of 23.9%. In the same period, there were 3,738 searches for using firearm/explosive dogs, resulting in 32 weapons being found (though no bombs are mentioned), a success rate of less than 0.01%. Combining both types of detection dogs for which figures were sought produces a success rate of 22.5%.

The Sydney Morning Herald, in an article posted online on December 12, updated the figures for 2011, indicating that through September 14 of 2011, 102 searches produced drugs 2,854 times, a success rate of only 20%.

According to the Sydney Morning Herald, Shoebridge said that “no test which has an 80% error rate could be considered a reasonable basis on which to conduct an intrusive public search of a citizen going about their daily business.” He said that with such a high error rate, targeting young people and Aborigines, the program should be halted. “If this was happening in the car parks of merchant banks, there would be outrage.”

The police response was that often found in the U.S.: if drugs were not found, it means that the person was using them recently, or had been in their presence, meaning that the alert was valid, just unproductive. The New South Wales Police Minister, Mike Gallacher, said the government fully supported the use of dogs because the police had found them effective.

New South Wales Ombudsman’s Report

There has been a tradition in Australia of reviewing the cost effectiveness of detection dogs. Most dogs are used in New South Wales and Queensland, the most populous part of the country (see the CIA map), and the Australian Customs Service has a Detector Dog Program. New South Wales has long had general police dogs, some of which were trained in drug detection, but did not begin to use specialized drug detection dogs until the 2000 Olympic Games in Sydney. Most detection dogs in Australia are Labradors. Dogs are generally trained with food rewards and taught to give a passive alert.

In a report published by the New South Wales Ombudsman in 2006, Review of the Police Powers (Drug Detection Dogs) Act 2001, the Ombudsman concluded that “despite the best efforts of police officers, the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers. Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use.” (See also, New South Wales Council for Civil Liberties, analysis of the Ombudsman’s Paper.)

The high cost of the program, and its marginal results in targeting drug suppliers, led the Ombudsman to question “whether the drug Dogs Act should be retained at all.” The Act was in fact repealed, though this did not mean the end of detection dogs, only the end of certain expanded police powers regarding their usage. The Drug Dogs Act had conferred on police the power to use drug detection dogs without a warrant in certain public places such as pubs, on public transport routes, and sporting and entertainment venues. The Act also required the Ombudsman to review the success of the use of dogs under the Act.

Use of Detection Dogs in New South Wales

The Ombudsman’s Report describes police procedures:

“Police distinguish the screening of people by the drug detection dog from the searching of people conducted by police. The distinction is important because the Drug Dogs Act does not require police to have a reasonable suspicion about a person in order to use the drug detection dog for screening. To search a person, police must have a reasonable suspicion that a person is in possession or control of a prohibited drug.”

The use of one dog was described in a drug dog case, DPP [Director of Public Prosecutions] v. Darby, NSWSC 1157 (2002) as follows:

“The evidence established that Rocky [the drug detection dog] had been trained to detect the scent of cannabis. When he did so his training caused him to put his nose in the air, flair his nostrils, and sniff rapidly. He would then follow the scent to its source. When he reached the source of the scent, he was trained to put his nose on such source and sit down beside it. If the scent emanated from a person’s pocket, Rocky was trained to put his nose on the pocket and then sit down beside the person.” (emphasis added)

In this particular case, Rocky placed his nose on the suspect’s pocket, resulting in a find of 2.89 grams of methamphetamine and 1.9 grams of marijuana. Darby was charged with two counts of possession of prohibited drugs.

Vapor Wake Analogy?

Following scent to source bears a significant resemblance to Auburn’s trademarked Vapor Wake Detection Program, where dogs are “trained to alert if they detect any explosives in the air and follow the explosive to its source.” Government Accountability Office, Technology Assessment: Explosives Detection Technologies to Protect Passenger Rail, GAO-10-898 (July 2010). Although the GAO accepts Vapor Wake Canines as “an emerging use of EDCs [explosives detection canines] that may be applicable to the passenger rail environment,” and refers to “generally positive results,” there is no indication that the agency has requested or received any statistical evidence of the sort available in Australia as to the success rates of the dogs. This would not be an unreasonable request, given that the Metropolitan Atlanta Rapid Transit Authority, according to the GAO, has been using such dogs since 2006 (the Ombudsman was gathering such data from the beginning of the sniffer dog program).

That searches using such scent-to-source trained dogs could be conducted on the street is indicated in a description of a 2003 incident from notes used in preparing the Ombudsman’s Report:

“Dog indicates a man seated with a group of other people at a table. The handler taps him on the shoulder and explains about the dog and cautions him. The man says that he had a smoke about three hours ago. He is given an explanation about the scent of the cannabis still being on him. Police officer says, “Just come out with me, mate. We’ll get it sorted.” The man says he is ‘freaked’.”

About 84% of incidents in the period reviewed by the Ombudsman (from 2002 to 2004) involved marijuana, though ecstasy, methamphetamine, cocaine, and other drugs were also found. All but one of the incidents involved less than 300 grams, for which no legal proceeding followed. Australian police can issue warnings and cautions in non-prosecutable situations.

The Ombudsman concluded that in only 26% of the time where a dog indicated were drugs subsequently found. This accuracy rate was not consistent with statements made by the dog handlers, such as, “my dog never lies,” though handlers were willing to accept that other handlers make mistakes, but often insisted on the accuracy of their own dogs:

“We’re not going to turn around and say, ‘oh, the dogs sniffed them, OK, well we’ll stop them’. The dog’s just sniffing, and as the trained handlers, we know that. Perhaps the other police we work with don’t know, but we’ll just go, ‘nup that’s wrong’. So it’s a load of crap. The dogs don’t indicate on food or cats or dogs. They might sniff them. They might pay them a little more attention, but that person’s not being stopped or searched or anything else just because they’ve been sniffed.”

Should There Be a Minimum Rate of Success to Justify a Program’s Existence?

As to the question of what level of accuracy is acceptable, the Ombudsman’s Report stated:

“It is not possible to point to a rate of finding drugs which is universally thought of as acceptable in terms of accuracy and effectiveness. While some might say that a rate of 1 in 4 is commendable, others will be concerned that three quarters of those searched are not found to be committing any offence. Others point to the number of admissions of drug use that accompany the searches where no drugs have been found to indicate that the dogs are highly accurate, detecting miniscule residual traces. Still others might comment that it is unduly narrow to focus on statistical rates when other benefits of the use of drug detection dogs and high visibility police patrols are no less important but are less quantifiable. For example, it has been argued that the drug detection dogs contribute to reducing fear of crime in the community, deterring and disrupting drug networks and reducing other forms of crime such as assaults and thefts.”

It is to be noted that finding “miniscule residual traces” might be acceptable in some environments, such as schools, but the Drug Dogs Act did not include schools in the definition of a “public place” where a warrantless search could be conducted. The Ombudsman continued:

“What is clear is that in practice, drug detection dogs provide the sole basis for the police reasonable suspicion to search a person. The dog can be viewed as a tool used to engage this suspicion. One might expect a higher standard of accuracy and reliability when using a tool, such as metal detectors or breathalysers, than of a police officer acting in the course of his or her duties without the assistance of any tools.”

The Ombudsman then reviewed several U.S. cases discussing accuracy rates, for which see Police and Military Dogs, Chapter 8, “Accuracy Rates.” One professor questioned whether a 27% accuracy rate was any better than chance, noting that about 35.5% of 20 to 29 year-olds and 27.7% of 14 to 19 year-olds in Australia were using drugs according to one survey. In other words, randomly searching individuals in these age groups would probably produce results similar to those from using a dog, at much less cost.

The Report acknowledged that one sniffer dog used by the police had a 56% success rate, though another had only a 7% success rate. The table reproduced here compares the rates of 17 dogs over a two year period from February 22, 2002, to February 21, 2004. All supervisors of canine units should keep such tables of dogs in their units, and all governmental authorities should demand such recordkeeping, along with cost figures.

Deterrent Effect Doubted

The Ombudsman’s Report rejected any deterrent effect in the use of police dogs:

“We were not able to find, nor were NSW Police able to provide, any evidence that the use of drug detection dogs disrupted low-level street dealing in a sustained manner. Similarly, we were not able to identify any evidence that the use of drug detection dogs has had a deterrent effect on drug users, or led to a reduction in drug-related crime. Nor were we able to measure any appreciable increase in perceptions of public safety as a result of high visibility policing operations utilising drug detection dogs. Further, there was no evidence that police obtained intelligence information during drug detection dog operations that led to further investigation of drug supply.”

At another place in the Report, however, the Ombudsman acknowledges that “it is not possible to determine the deterrent effect of drug detection dogs or whether they contributed to the general downward trend in drug offenses.”

The Australian experience is clearly different from that in the U.S., where it has often been possible to obtain significant information from street-level users regarding their suppliers.

Significance of the Australian Debate

Trolling sports and entertainment venues with drug dogs, given that most individuals caught are going to be given warnings even if caught with something, seems a waste of police time at the expense of the public. The failure to target environments where drug suppliers may be found is a good argument for altering police practice, but not necessarily for eliminating drug detection dogs.

In prior blogs we have been concerned that dogs should not become a failsafe method of justifying a search when nothing else pans out. Pressure to produce an alert is a primary source of cueing, cueing that will often result in a false positive. As we have argued, the results of cueing are insidious throughout the criminal justice system, even if American courts have been slow to recognize the issue and prosecution witnesses reluctant to acknowledge it. False alerts, whether from cueing, poor training, or otherwise, reduce the cost effectiveness of canine units. Handlers and police administrators should understand that ignoring cost effectiveness may ultimately result in costs being cut altogether.

Even if residual odor can continue as a mantra to excuse a low field accuracy rate in criminal prosecutions, the number of times drugs are not found by a department’s canine unit after alerts has to be accounted for an expense without result. Australia has been more focused on the cost benefit of canine units than have politicians and administrators in the U.S. This is likely to change as more governments at all levels become strapped for cash and are forced to consider how crime can be fought most efficiently, and cheaply.

We believe that the dogs will win in the end, that there are thousands of good law enforcement dog handlers in the United States, but we also believe that recordkeeping could substantially improve, and should be made more comprehensive and uniform across the U.S., on a model similar to that used by the New South Wales Ombudsman. Such results should regularly be reviewed by police administrators and governments, and published for the benefit of governments, courts, and the public.

This blog was written by John Ensminger and L.E. Papet. Picture and table reproduced here as noncommercial use, © State of New South Wales through the NSW Police Force. Thanks to Sherri Minhinnick for suggesting this topic to us.

Seizure of Drugs in Plain View Was Legal, but Search Following Dog’s Alert Should Have Waited for Warrant (Not That It Mattered)

2011-12-10T10:05:00.023-05:00

Officer Michael Sweeney saw Shayna Kline make a U-turn against a red light on Martinsville Road in Bernards Township, New Jersey. Kline later disputed that she had turned on a red light, saying that she had waited for the light to turn green. Sweeney pulled the vehicle over and approached the passenger side of the vehicle. Officer Kazinsky, also on patrol, pulled up in a separate patrol car. Kline argued at trial that her car was targeted because it had out-of-state plates and that Sweeney must have already called for backup even before stopping her because Kazinsky arrived so quickly.

Sweeney, using a flashlight, saw what he believed to be marijuana and tobacco on the floorboards of Kline’s vehicle. Marijuana often looks like dirt from a distance of several feet so there was likely a significant amount or portions of joints were visible.

Sweeney asked for the driver’s license, registration, and insurance card, but Kline could only supply a “photocopy like” identification card. The passenger only had a non-government identification card from Maryland. Kline was asked to exit the car. When asked for her Social Security number, she could not remember it. Although she said she had been dating her passenger, Vladimir Reynoso, for three years, she could not remember his last name. She did not make eye contact and appeared nervous. Questioned separately, Reynoso said he was not dating Kline.

After learning Kline’s license had been revoked, Sweeney separately secured defendant and Reynoso in different patrol cars. It’s not clear why Kline was not immediately arrested, allowing for a search incident to the arrest or an inventory search. In any case, Sweeney entered the vehicle and found pieces of marijuana, tobacco, and cotton balls. He detected a strong odor of marijuana from the trunk area, he later testified, though he did not put this information in the warrant application. Sweeney then sought consent to search the vehicle but Sweeney refused. Cotton balls are used in the drug culture, for cleaning spoons and needles, to add moisture to marijuana, etc., but it was not explained why they were in the car.

Patrolman Dockery, by this time the senior officer present, requested a “canine dog,” a redundant term that apparently was the court’s or a witness’s way of describing a narcotics detection dog. Since drugs had already been found, providing probable cause for further action, it is not clear why a dog was needed at this point unless it was to test the dog, or because there was some feeling on the part of the officers that they might not have been able to convince a court that drugs had, in fact, been in plain view.

The dog arrived and, according to the opinion, alerted to the presence of marijuana. Most likely the dog was trained to alert to more than marijuana, and arguably could have alerted to another odor, but marijuana was the only drug found. Kline again refused to consent to a search of the vehicle and was told that it would be seized and a search warrant sought. Kline and Reynoso were arrested and brought to Bernards Township Police headquarters. Officers went to the judge’s residence and she granted their warrant application. Drugs were subsequently found in the trunk.

Trial

At trial, the court accepted the police version of events and concluded that “the presence of marijuana … the conflicting stories from … defendant and Mr. Reynoso, and defendant’s nervous and evasive behavior in response to question,” meant that “Officer Sweeney had probable cause to search the passenger compartment of defendant’s vehicle.” The court also found that holding the defendants until the emergent judge made herself available at 7 a.m. was reasonable. The seizure of marijuana from the floorboards of the car was found to be justified under the plain-view exception to the warrant requirement.

The Supreme Court of New Jersey, in a case decided in 1983, had stated that there were three requirements to the plain view exception:

1. The police must be lawfully in the viewing area.
2. The officer has to discover the evidence “inadvertently,” meaning that he did not know in advance where evidence was located nor intend beforehand to seize it.
3. It must be “immediately apparent” to the police that the items in plain view ere evidence of a crime, contraband, or otherwise subject to seizure.

New Jersey v. Bruzzese, 94 N.J. 210, 463 A. 2d 320 (1983). The appellate court in the current case, New Jersey v. Kline, No. A-6126-09T2, 2011 WL 557382 (Ct. App. 2011), determined that these requirements had been met, in that Sweeney (1) had articulable suspicion to make the stop and be within the viewing area, (2) did not know he would see marijuana when he got to the car, and (3) it was readily apparent that there was marijuana on the floor of the car.

The defendant testified that she had been in the gas station for 28 to 30 minutes before she tried to drive away. What was going during this 28 minutes, a time period that does not seem to have been controverted by the prosecution? It was certainly enough time for the police to choreograph the sequence of their actions after Kline began to drive away and should have been of considerable interest to defense counsel for arguing that the plain-view exception might not have been satisfied.

The trial court then concluded that exigent circumstances and probable cause had justified the search following the dog's alert.

Appeal

The appellate court concluded that the seizure of the marijuana from the floorboards was justified under the plain view exception to the warrant requirement. Nevertheless, this court stated:

“We disagree, however, with the trial judge's ultimate conclusion that based upon all of these circumstances, the subsequent warrantless search of the vehicle's interior and under the hood was justified. While there were sufficient facts, measured objectively, from which Officer Sweeney had probable cause to believe that evidence of a crime may be found in the car, the circumstances at that point were not exigent. Defendant's vehicle was not stopped in a high crime area…. Defendant and Reynoso were being detained by at least two, possibly four, Bernard's Township police officers when Officer Sweeney commenced his search of the vehicle's interior. The testimony also revealed that there was a prosecutor and a judge on emergent duty…. Moreover, although the judge inexplicably required the officers to wait until seven a.m. to obtain the search warrant, this delay was not unreasonable, particularly since defendants were in custody based upon the seizure of narcotics found in plain view. Therefore, making an application for a search warrant was not impractical…. Under these circumstances, beyond entering defendant's vehicle to retrieve the suspected marijuana observed in plain view on the floorboards, the search of the interior and under the hood of defendant's vehicle was not justified under exigent circumstances.

“Nonetheless, no drugs or other contraband were seized as a result of this illegal intrusion. Moreover, the search warrant subsequently issued was valid. The facts upon which the warrant was issued did not include Officer Sweeney's detection of a strong odor of raw marijuana upon entering the vehicle. Rather, the judge was advised of his observation of suspected marijuana during the course of a motor vehicle stop for a traffic violation, that defendant did not have a driver's license, and that the canine dog alerted to the presence of drugs from the exterior of the vehicle before entering the vehicle and alerting to drugs from the interior. Thus, the illegal search of the vehicle's interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant. Hence, there is no basis to reverse the order denying defendant's motion to suppress the evidence seized from the trunk.” (emphasis added)

The appellate court affirmed the trial court’s decision.

Open Questions

Since holding the defendants until a judge could be asked to issue a warrant was not unreasonable, and calling for the dog upon Kline’s refusal to allow a search was justified, it would appear that the dog’s sniff did not unreasonably prolong the stop or otherwise violate Kline’s rights. Why the dog’s alert did not provide sufficient probable cause for a warrantless search of additional parts of the vehicle and a full search of the interior was explained as coming after a point where there were no exigent circumstances, the car was not in a high-crime area, and a warrant could be obtained. Also, “the illegal search of the vehicle’s interior by Officer Sweeney and the canine dog was sufficiently attenuated from an otherwise valid seizure of drugs based upon the plain view exception to the warrant requirement and a validly-issued search warrant.”

The attenuation reference is in need of more specificity since the court’s position could be interpreted as meaning that the search subsequent to the sniff could not fit within any extension of Caballes. (See U.S. v. Marquez, 2005 WL 455858 (3d Cir. 2005), citing Illinois v. Caballes, 543 U.S. 405 (2006), holding that an alert at the trunk of a vehicle established probable cause to search it and arrest the driver.) The reason that Caballes and its Third Circuit and New Jersey progeny could not apply should have received some attention.

Attenuation is applied in probable cause situations where “the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’” Wong Sun v. U.S., 371 U.S. 471 (1963), quoting Nardone v. U.S., 308 U.S. 338 (1939). Thus, sufficient attenuation between an illegal search or seizure and later evidence does not require application of the exclusionary rule. Segura v. U.S., 468 U.S. 796 (1984). In Brown v. Illinois, 422 U.S. 590 (1975), the Supreme Court elaborated that the “notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” The illegal search, as to which the subsequent discovery of evidence must be attenuated for that subsequent evidence to be admitted, is the root of the poisonous tree as to which the subsequent evidence is fruit. See U.S. v. Dupree, 617 F.3d 724 (3d Cir. 2010). Here, the illegal canine search followed the initial plain-view seizure and presumably the question is whether this subsequent activity, having been declared illegal, would taint the warrant. The fact that no drugs or contraband were found in this second search was stated by the appellate court before mentioning that the warrant was valid. It is not clear whether drugs, if they had been found in this tainted search, would have been admissible though an inevitable discovery argument could have been made. Attenuation, in any case, would not help the prosecution here.

If the illegality of the search following the dog's alert is simply a determination that after the initial probable cause, the initial seizure, and the arrests, a warrant could have been obtained and further investigative procedures delayed until it was obtained, this raises additional questions. For instance, if the dog had alerted and plain view of the marijuana had not occurred until the search based on the dog’s alert began, could the dog-supported search have been continued? More specifically stated: if the hood or trunk had been raised because of an alert and drugs found, and the occupants arrested before an officer saw marijuana in plain view inside the car—say after the occupants had left it and shut the doors behind them, would searching the interior of the car have then required a warrant? It would seem so if the order of events can determine what supports a search, and conceivably the extent of a search in a vehicle that can have drugs in a number of places. Or should such a hypothetical reversal of the order of events be distinguished because the subsequent plain view of an officer involves no separate effort, unlike bringing a drug dog to a car? Answering such questions would provide additional understanding regarding the potential application of Caballes to real-world decision-making on the part of police.

It is to be noted that although the plain view exception might restrict a search or seizure to the area where illegal items were in plain view, this has not been held by some courts considering the extent of a vehicle search based on a sniff. See U.S. v. Carter, 300 F.3d 415 (4th Cir. 2002) (alert at driver’s door justified search of trunk); Ohio v. Bolding, 1999 WL 334494 (Ct. App. 1999) (alert gives probable cause to search entire vehicle). For further discussion see “Specificity of Alert” in Police and Military Dogs, Chapter 8.

Conclusion

The lesson appears to be that the more reasons for probable cause the better because some may drop away through a court’s analysis of the circumstances. Watching a car for nearly half an hour in a gas station is a long time and suggests that the discovery of anything in plain sight might not have been particularly “inadvertent.” Perhaps this potential weakness in the police procedure explains why calling the dog was deemed necessary. Police are well advised to obtain a warrant as efficiently as possible once an arrest has been made, at least where evidence is in no danger of disappearing and a judge can be made available.

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

An Overly Friendly Dog Pushes Over a Guest: Is Suing Owners of Goosers a New Profit Center in Personal Injury Law?

2011-12-03T08:04:00.029-05:00

My dog sometimes gets rambunctious and runs between the legs of guests. We can generally control this, and try to warn people to be on their guard on entering our house. Being a lawyer, I suppose I have always had in the back of my mind the question of whether I might be liable if somebody falls down and breaks a hip.

A recent decision by an appellate court in New Jersey provides some perspective on this issue for those of us who have overly friendly dogs. The fact that the dog’s owner was not liable in this particular case should not lead people who own “goosers,” “bumpers,” and “running through you” dogs to believe that they can never be liable when such demonstrations of interest or affection get out of hand.

A Longstanding Friendship

Rochelle Puzzutiello and Gail Wurster became close friends in 1995. They spoke on the phone daily and frequently spent nights at each other’s homes. Puzzutiello moved to Florida in 2004, but they continued their phone conversations nearly every day. Puzzutiello returned to New Jersey for holidays and kept her apartment in Audubon.

Wurster was diagnosed with cancer in early 2009 and Puzzutiello made plans to return to New Jersey as soon as Wurster was out of surgery. On March 23, 2009, Puzzutiello’s brother, Joseph Ezzi, drove her to Wurster’s home. On entering the house through the back door, Wurster’s dogs were at her feet and neither seemed excitable or unruly to Puzzutiello, and they remained calm while she unpacked.

The visit progressed without incident until Puzzutiello tripped over the younger dog, named Lucy, who weighed about forty pounds and was described by Puzzutiello as “lovable” and “very gentle.” The fall fractured Puzzutiello’s ankle. The incident was described by Wurster to an investigator as follows:

“The three of us [plaintiff, defendant and Ezzi] were in the living room area of my house, talking.... The dogs were overly excited I guess[ ] to see the guests in the house. And me, on my return home from the hospital[.] I was sitting in the chair and the two dogs were near [plaintiff] who was standing near the television, actually she was walking away from me. The smaller dog [Lucy] followed her and moved between her legs causing her to trip. She couldn't regain her balance and fell into the wall.... I knew she was injured seriously.... I want to say again that I felt terrible about this accident. I feel that it was the action of my smaller dog, Lucy when she placed herself between [plaintiff's] legs that caused her to trip.”

Trial Court Grants Summary Judgment

The trial court granted summary judgment to the defendant, stating:

“These are dogs. These are dogs that are walking around in their owner's home, their owner's back from the hospital, sitting—recovering from surgery. This is a family friend who's been in the company of the dogs many, many times. Whether the theory of liability here is that ... defendant should have known that the dogs were especially excitable and had a duty to protect the plaintiff by putting the dogs in some other room or controlling them or otherwise preventing them from causing this injury to the plaintiff[,][t]his is not a dog bite case. This is not a dog jumping on somebody. This is not a dog walking in an unruly fashion. This is a dog in a house with its owner, with its friend, the plaintiff, who as the plaintiff is walking moves between [plaintiff's] legs and causes her to trip....

“The court finds as a matter of law that under those factual circumstances, the defendant had no duty of care to place the dogs somewhere other than in the living room. The plaintiff came to meet with [defendant] and while the court ... feels badly that the plaintiff was injured, the court can find no duty of care on the part of the owner who was recovering from abdominal surgery, who was in her house, who was with her dogs. The—sadly, the plaintiff tripped. She tripped over a dog that was walking around in a room that the dog lived in.”

Appellate Court Reviews the Facts and Law

Puzzutiello appealed, arguing there was a genuine issue of material fact and that summary judgment should not have been granted. The New Jersey appellate court noted that when “there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a ‘genuine’ issue of material fact…” under New Jersey evidentiary rules (quoting Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 666 A.2d 146 (1995)).

The appellate court, in a decision written by Judge Linda Baxter, provided its own summary of the facts, stating:

“[W]e conclude that Lucy moved between plaintiff's feet as plaintiff was returning to the sofa. However, there is no evidence in the record warranting a conclusion that Lucy, the dog that tripped plaintiff, was in any way unruly, excitable or out of control on the day in question. Plaintiff herself described Lucy as a “gentle” and “lovable” dog, and plaintiff acknowledged that she had never had any concerns about Lucy during any of the numerous occasions she had visited defendant. Although plaintiff stated that defendant's other dog Gabby was a “jumper,” the record is devoid of any evidence remotely suggesting that Lucy, who was the cause of plaintiff's injury, had ever acted in a manner that endangered plaintiff or anyone else. Nor was there any indication that on the day in question, Lucy had been doing anything other than sitting at defendant's feet prior to the moment when the dog apparently stood from that position and began to follow plaintiff back to her seat on the couch. We reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion.”

The court noted that Puzzutiello was not claiming that Wurster should have put the dogs in another room, only that Wurster should have warned her the dogs were unruly or excitable. The court noted that while liability might have applied for a dog bite, there was no bite here. The court noted that the question was whether landowner liability applied, but a “host has a duty to warn a social guest of a dangerous condition on the property only when the host has actual knowledge of a dangerous condition of which the guest is unaware.” Here, Puzzutiello had been to Wurster’s home many times and “was familiar with defendant’s dogs, their demeanor, and the fact that they could move, and were frequently ‘in the say’ and ‘wanted to be the center of attention.’”

The court elaborated:

“[P]laintiff here knew a dog was present and that the dog might move from where it was sitting. Because plaintiff was aware of the dog's presence in the home, and in the specific room where plaintiff was situated, defendant had no duty to warn her that the dog might move, as this was a readily observable condition of which plaintiff had knowledge. Moreover, in light of plaintiff's concession that Lucy had been acting 'fine' during plaintiff's entire visit, there was nothing about the dog's behavior that could have triggered any duty on the part of defendant to warn plaintiff that she should be especially careful about the dog. We therefore conclude that under the facts presented, there was no duty to warn plaintiff, who was a social guest, that the dog Lucy posed any danger to plaintiff.”

The appellate court concluded that the trial court had not erred in granting summary judgment, and affirmed.

One would like to know if the two remained friends, or if the real defendant was an insurance company, but nothing outside of the court record seems, at least so far, to have reached the media.

Different Facts Might Produce Different Results

Those of us with friendly pets should recognize, however, that there might be circumstances where summary judgment would not be granted. If you know your dog has a tendency to push people over, and the guest does not know this, you have a duty to give a warning. Although the situation is not identical to a bite, liability might still attach. Don’t assume that an injury will always be overlooked, either by a litigious guest or a court.

Although the facts of this case involved a plaintiff visiting the defendant in her house, one could easily imagine an overly rambunctious dog at a dog park causing an injury to another user. A google search for "over friendly dog" + "personal injury" suggests that a number of lawyers specializing in dog bites now devote a portion of their practices to representing plaintiffs injured by overly friendly dogs.

If you have such a dog, it’s probably worth asking your insurance provider about the extent of your coverage for pet incidents. Bites are usually covered in general homeowners’ policies, but your insurer may not have thought about the fact that a friendly dog can sometimes be almost as injurious as an aggressive dog.

Puzzutiello v. Wurster, 2011 WL 5169432 (Ct. App. 2011)

Federal Turf Wars Over How to Train Explosives Detection Dogs

2011-11-25T21:28:00.032-05:00

On August 11, 2004, Attorney General John Ashcroft sent a memo to the Directors of the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) specifying that as “soon as practicable, all Department components that use explosives detection canines shall use only canines certified by ATF.”(1) This did not happen in the Bush administration, and seven years later in the Obama administration the FBI continues to use dogs not certified by the ATF.(2) While the turf war between the FBI and ATF has involved much more than dogs,(3) here we will focus on those aspects relevant to canine training and deployment.

From a fairly clear designation in 2004 of the ATF as the agency responsible for certification of explosives detection dogs, it now appears that both the FBI and ATF apply different philosophies with regard to training explosives detection dogs, and it is not clear that the Department of Justice still expects there to be any real amalgamation of canine functions. It may be that Justice has settled for relatively specific boundaries between the two bureaus that can at least keep their squabbling from being aired in public.(4)

An increasingly important player in the field of canine training is the Transportation Security Administration within the Department of Homeland Security. TSA’s power may become sufficiently great in the end that this agency will ultimately determine the most widely used parameters for federal explosives detection dog training.

ATF’s Odor Recognition Proficiency Standard

The Omnibus Consolidated Appropriations Act of 1997(5) had authorized the Secretary of the Treasury to establish a standard for explosives detection canines to be employed by federal agencies or other agencies providing explosives detection services at airports in the U.S. At the time, ATF was in the Department of Treasury, but was transferred to the Department of Justice in 2003. Section 653(a) of the Act provided: “The Secretary of the Treasury is authorized to establish scientific certification standards for explosives detection canines, and shall provide, on a reimbursable basis, for the certification of explosives detection canines employed by Federal agencies, or other agencies providing explosives detection services at airports in the United States.”

Treasury designated ATF with the responsibility of developing the standard.(6) In 1999, ATF noted that it had provided copies of the odor recognition standard to “all interested persons” and that it had “solicited input and recommendations from other Federal law enforcement agencies that use explosives detection canines.” On March 10, 1999, the Oak Ridge National Laboratory, managed by Lockheed Martin Energy Research Corporation for the U.S. Department of Energy, issued a final report concluding that ATF’s odor recognition proficiency standard was “valid for the measure of the proficiency for detecting explosives odors at the recognition and alerting phase of training.”(7)

There does not seem to have been a problem until ATF was transferred to the Department of Justice on January 24, 2003, at which point it became apparent to ATF officials that the FBI was not accepting ATF’s mandate regarding explosives detection dogs for federal agencies.

2007 Agency White Papers

In 2007, the FBI and ATF developed “white papers” that were attached to an Explosives Review Group report to Deputy Attorney General Paul McNulty. It must have been obvious to McNulty and other DOJ officials that Ashcroft’s memo had not been implemented. The FBI’s white paper argued that:

• DOJ components should use only canines meeting Scientific Working Group on Dogs and Orthogonal Detection Guidelines (SWGDOG) Certification.
• The FBI should continue its joint training initiative on peroxide explosives scent training.

ATF argued that:

• All DOJ explosives detection dogs should be procured, trained, and certified by ATF.(8)
• Any training related to explosives detection canines sponsored, coordinated, or presented by DOJ components should be coordinated through ATF.

ATF was willing to agree that if an ATF-certified canine was not available, a DOJ component could, in the interim, use a dog trained and certified to standards set by SWGDOG.(9) The photograph is from ATF’s website, showing an ATF dog in training.

2009 Inspector General Audit

An audit report of the Department of Justice Inspector General released in October 2009 (“2009 audit report”) concluded that the FBI and ATF had failed to implement Ashcroft’s 2004 directive, and that the two agencies continued to disagree on the guidelines for training explosives detection dogs.(10) The report determined that “the FBI generally uses non-ATF certified canines.” A survey of FBI explosives specialists determined that more than 80% rarely or never used ATF-certified dogs, relying instead primarily on explosives detection dogs provided by state and local agencies that are often not ATF-certified. The FBI’s uniformed police use ATF-certified dogs, but FBI field divisions generally rely on state and local dogs or the explosives detection dogs actually owned by the FBI (numbering only four in 2009).

“Although the FBI and ATF agree that DOJ should have a single certification standard for canines, they disagree on the how the standard should be established. ATF developed the National Odor Recognition Training and Testing (NORT) program as a standardized method for assessing a canine’s ability to recognize explosives odors. NORT is a test administered by ATF forensic chemists to federal, state, and local canine teams.

“The FBI believes NORT may not actually assess the operational capabilities of the canine and that the certification standards should be determined by the Scientific Working Group on Dog and Orthogonal detector Guidelines (SWGDOG). SWGDOG is composed of members from federal, state, and local agencies, including both ATF and the FBI.(11) While SWGDOG is a non-certifying body that provides best practice guidelines, it anticipates that these best practices will be incorporated into participating organizations’ certification standards."(12)

The Inspector General described the FBI and ATF as having “developed separate and often conflicting approaches to explosives investigations and related activities such as explosives training, information sharing, and forensic analysis.” The Inspector General warned that this continuing friction meant that the agencies might not meet the requirements of Homeland Security Presidential Directive (HSPD)-19 (February 12, 2007), “which requires a united, multi-layered strategy to mitigate the threat and prevent the use of explosives by terrorists.”

The Inspector General noted that despite ATF being responsible for certification of all DOJ explosives detection canines, “the FBI continues to disagree with ATF on canine certification standards. We also found that DOJ sent conflicting signals to the components, directing that one standard for training canines be administered through ATF, but also funding a working group seeking to adopt a different standard through the FBI and DOJ’s National Institute of Justice.” The working group is a reference to SWGDOG.

The FBI told the Inspector General that the HSPD-19 Implementation Joint Program Office (JPO) was designed to resolve issues not previously resolved through other mechanisms. Concerning this, the 2009 audit report stated:

"We found that the JPO was not designed to function as the deciding authority on roles and responsibilities for the FBI and ATF in handling explosives incidents, but instead was conceived to be a formalized, interagency discussion forum. Unless there is consensus among the agencies involved the JPO cannot force settlement between components. Therefore, while the JPO and its members may be used to assess and reflect community opinion and advise on priorities, individual agencies will continue to make programmatic and budgetary decisions independently."

The Inspector General found “no evidence that the FBI and ATF worked together to establish DOJ explosives training priorities, and the two agencies reached no consensus on the use of explosives detection canines.”(13) This was true despite the fact that the two agencies train dogs for similar, or at least overlapping, purposes.

"[E]xplosives specialists from both ATF and FBI are providing peroxide-based explosives detection training to state and local bomb squad canine teams and both components disagree about the standards that should be used to certify explosives-detection canines."

Other agencies, such as the Transportation Security Administration, work with both the FBI and ATF on canine issues:

"According to ATF, it began training explosives detection canines on peroxide-based explosives in 2002 after the ATF Laboratory worked with British authorities to develop an effective method of producing explosives used for training purposes. In 2006, the National Explosives Detection Canine Training Program, which is part of the Transportation Security Administration of the Department of Homeland Security, worked with the FBI to train canine teams to detect various peroxide explosives."

The Inspector General then detailed specific canine training issues on which the FBI and ATF disagreed:

“FBI explosives specialists told us they provide bulk (15-30 grams) samples of peroxide-based explosives to state and local canine handlers to sensitize their animals to the peroxide scent.(14) ATF also conducts similar training for state and local canine handlers with trace (5 milligrams) amounts of peroxide-based explosives.(15) ATF officials argued that the FBI should not be providing such training, saying that ATF’s method is superior because training with trace amounts of peroxides enhances the canines’ ability to detect explosives. For example, because these explosives would generally be sealed in containers, the canine must be able to alert based on recognizing a trace amount of explosives left on a container lid or its scent on the potential bomber.(16)

“An FBI Explosives Unit official noted in a published FBI Bomb Data Center Investigators Bulletin that trace amounts, like those used by ATF, can be utilized to conduct training if suitable precautions are taken [citing FBI Bomb Data Center Investigators Bulletin 2006-3 entitled K-9 Detection of Peroxides]. However, the official noted that any time trace amounts of material are utilized, they are susceptible to contamination. For example, if the handler using these aids handles any other type of explosive or has an explosive residue near these aids, it is possible to introduce interfering odors. In addition, the FBI official contended that trace amounts of peroxides dissipate rapidly, and once exposed, have a very short shelf life.

“Despite these differing opinions, the differences between the FBI and ATF’s peroxide-based explosives training programs do not appear to be irreconcilable, and consolidation of the training standards should be possible. Therefore, we recommend the FBI and ATF consolidate the training for peroxide-based explosives.”

This means that in 2009, the Inspector General thought the canine training approaches of the FBI and ATF could at least be reconciled. It was not clear that this reconciliation would come about through any specific mechanism, but it appears the FBI, at least, had faith in the National Explosives Detection Canine Advisory Board (NEDCAB). Concerning this group, the Inspector General stated:

“[T]he FBI noted that the Department of Homeland Security (DHS) and DOJ will co-lead an interagency advisory board responsible for developing uniform standards for explosives-detection canine teams, including annual certification and recurring proficiency training. DHS and DOJ, building on the previous ATF National Canine Advisory Board, created the National Explosives Detection Canine Advisory Board [NEDCAB], which includes participants from major professional canine associations. The FBI believes that as a result of the creation of this advisory board for the first time, there is consensus across the explosives-detection canine community that national training and performance standards are needed.”

The Inspector General was not so sure that NEDCAB would be a final answer.

“As part of the JPO, the Department of Homeland Security (DHS) and DOJ are co-leading an interagency advisory board responsible for developing uniform standards for explosives-detection canine teams, including annual certification and recurring proficiency training. DHS and DOJ, building on the previous ATF National Canine Advisory Board, created the National Explosives Detection Canine Advisory Board, which includes participants from the four major professional canine associations. The FBI believes that as a result of the creation of this advisory board for the first time, there is consensus across the explosives-detection canine community that national training and performance standards are needed. We recommend that DOJ select and enforce a single standard for the use of certified canines for DOJ components, consistent with the requirements of HSPD-19.”

Upon release of the Inspector General’s report, FBI Assistant Director Michael Kortan and ATF Assistant Director W. Larry Ford issued a joint statement describing how the ATF and FBI have cooperated, including recommending for prosecution 192 explosive-related cases involving 397 defendants. Not surprisingly the joint statement said the two agencies are working “to resolve the identified issues to improve coordination and response to explosive incidents.”

GAO Reports

In a 2010 report,(17) GAO noted some differences between SWGDOG and ATF training, and also stated that the Transportation Security Administration’s dogs are following certification standards of ATF.

“While the mechanism of how canines detect explosives through their sense of smell is not well understood, there are several certification programs to validate the canines’ ability to detect explosives, which include specifying standards for explosives detection. These standards vary based on which entity is certifying the canine. A guiding document on the training of canines is the Scientific Working Group on Dog and Orthogonal Detectors Guidelines that specifies recommended best practices for canine explosives detection. These standards call for an EDC to detect explosives a certain percent of the time and a probability of false alarms less than a certain rate. Certifying entities, however, may have more stringent standards. For example, ATF requires that its canines detect all explosives that are presented to them, and have limited false alarms in its tests. TSA requires that their certified canines find a specified percent of explosives in a variety of scenarios, such as onboard an aircraft, mass transit rail, and mass transit buses. Homeland Security Presidential Directive-19 tasks the Attorney General, in coordination with DHS and other agencies, with assessing the effectiveness of, and, as necessary, making recommendations for improving federal government training and education initiatives related to explosive attack detection, including canine training and performance standards. According to ATF officials, TSA, in coordination with ATF, is developing standards for EDCs, which are nearly complete and are similar to the standards that ATF uses….

“Canines have a history of being trained to detect items and in recent years have been trained to detect, among other things, explosives, fire accelerants used in arson investigations, and drugs. While training methods differ among canine training schools, these methods typically train canines by rewarding them for locating certain items. Rewards include toys, a food treat, or the canine’s food itself. In turn, these canines are trained to alert their handlers if they detect an item of interest, usually by sitting down next to the item.”(18) (emphasis added)

Yet another GAO report stated that “[p]articipants in TSA’s Transit Security Grant Program and DHS’s Homeland Security Grant Program are required to maintain data to document compliance with guidelines for their explosives detection canine teams. These guidelines were developed by a scientific working group that included officials from DHS.”(19) This is another reference to SWGDOG, the standards of which could only with some stretch be said to be “similar to the standards that ATF uses.”(20)

2010 Protocol

In 2010, Gary G. Grindler, Acting Deputy Attorney General, released a protocol superseding all prior guidance on ATF-FBI explosives coordination, including, it would appear, Ashcroft’s 2004 memo. Grindler noted the respective capacities of the two agencies:

• ATF has 2,593 Special Agents trained in post-blast and fire scene investigations.
• ATF has 244 Certified Explosives Specialists who cover much of the country.
• The FBI has 143 Special Agent Bomb Technicians (SABTs).
• The FBI has 100 Joint Terrorism Task Forces (JTTFs) around the country staffed by federal, state, local, and tribal law enforcement agencies.

Despite these areas of competence, Grindler states that “the current situation—as chronicled by the Office of Inspector General—must be remedied.” Grindler then outlines guidance, beginning with domestic terrorism explosives investigations:

“I have concluded … that the FBI should ultimately be considered the lead agency for domestic terrorism explosives investigations…. Unless the matter of lead agency has otherwise been addressed between the ATF and FBI in a particular matter, the ATF will be the lead agency for explosives investigations where there is no credible nexus to international or domestic terrorism….”

Grindler acknowledges that lead agency jurisdiction may shift during an investigation.

As to explosives training, Grindler notes that the FBI opened its Hazardous Devices School at the Redstone Arsenal in Huntsville, Alabama, while ATF has the National Center for Explosives Training and Research in Fort A.P. Hill, Virginia, and the Canine Training and Operations Support Center in Front Royal, Virginia. Grindler does not side with either agency on training, but directs “ATF and FBI to develop a joint plan for consolidated explosives training of ATF and FBI agents and technicians, and state and local law enforcement, that is consistent with this protocol.” A working group—was another working group really needed?—will be created to aid in this effort, which “should identify the cost savings that can be achieved by integration of training curricula and facilities.” Joint training should begin within six months of Grindler’s memo, i.e., by February 3, 2011.

The protocol attached to Grindler’s memo ends with an explanation of what is to happen henceforth in disputes between the FBI and ATF:

“If disputes arise relating to the operation of this protocol, the Deputy Directors from ATF and FBI shall meet in the first instance to resolve those disputes. If a matter cannot be resolved at the Deputy Director level, it should be brought to the Office of the Deputy Attorney General for resolution by the Explosives Coordination Committee.”

This sort of knocking of heads may work, but if so it would likely be because of Grindler’s direct influence, since preaching to the parties has not worked for the preceding six years.

2011 Developments

A 2011 GAO report on cost savings noted that since 2004, the Department of Justice “has taken actions intended to address duplication and overlap in the areas of explosives investigations jurisdiction, training, information sharing and use of databases, and laboratory forensic analysis.”(21) The GAO refers to the DOJ Inspector General’s 2009 report, noting how the problem has continued for years without resolution. Nevertheless, the GAO’s recommendation is no more than that the Department of Justice should continue to monitor the situation.(22) The GAO made no specific mention of canine training in this report.

An ATF Fact Sheet issued September 2011 reiterated ATF’s faith in its National Odor Recognition Testing Standard (NORT) and provided the following statistics:

"There are 29 ATF–trained explosives detection canine teams with ATF special agent canine handlers. Also, there are currently 122 ATF–trained explosives detection canine teams deployed throughout the United States with local, state or other federal agencies. In addition, there are 61 ATF–trained accelerant detection canine teams currently active in the United States and one in Canada….

"Since 1991, ATF has trained 708 explosives detection canines and 157 accelerant detection canines. These dogs and their ATF–trained handlers are located throughout the United States in local police and fire departments, fire marshal offices and federal and state law enforcement agencies. Teams are also located in 21 foreign countries…. The canines are capable of detecting 19,000 explosives compounds."

Needless to say, ATF did not mention the doubts expressed by the FBI to the DOJ Inspector General regarding the NORT program in 2009.

Enter the Department of Homeland Security

Wind the clock back to 2006 when Congress was grappling with ways to turn the 9/11 Commission Report, issued in 2004, from policy perspectives and general recommendations into legislation. In the Implementing Recommendations of the 9/11 Commission Act of 2007,(23) Congress authorized the Department of Homeland Security to create the National Explosives Detection Canine Team Training Program, and provided that this authority would extend well beyond TSA:

“Based on the feasibility in meeting the ongoing demand for quality explosives detection canine teams, the Secretary shall establish criteria, including canine training curricula, performance standards, and other requirements approved by the Transportation Security Administration necessary to ensure that explosives detection canine teams trained by nonprofit organizations, universities, and private sector entities are adequately trained and maintained.” (6 U.S.C. 1116(c)(1))

The Secretary of Homeland Security is to “coordinate with key stakeholders, including international, Federal, State, and local officials, and private sector and academic entities to develop best practice guidelines for such a standardized program, as appropriate.”

The legislative history provides limited perspective on what Congress was thinking about with regard to the TSA program:

“The Conferees recognize that explosives detection canines are not trained to additionally detect chemical, nuclear or biological weapons and that, at present, such teams cannot detect radiological materials. Further, the Conferees recognize that canines are trained to detect specific threats and cannot, at this time, effectively be crossed-trained to identify multiple threats. In requiring the TSA to develop canine training curriculum and performance standards under this section, the Conferees expect TSA to do so for those threats within the definition that are currently applicable to canine team detection. However, the Conferees trust that TSA will explore opportunities to train and/or acquire canines that are able to detect new and emerging threats, such as chemical, radiological, nuclear and biological weapons. To that end, the Conferees expect that prior to developing and distributing canine training curriculum and performance standards under this section, TSA will fully vet any ongoing training, whether domestic or international, that has a proven method to successfully detect those additional threats that may not currently be applicable to TSA-trained canines.”(24)

The legislative history is largely restricted to transportation issues, but does say that the Secretary of Homeland Security “may use the canine teams on a more limited basis to support other homeland security missions, as determined appropriate.” Had Congress considered that it had previously designated ATF with overall responsibility for explosives detection canine training in the 1997 Appropriations Act, this would have been the place to mention it, because the 9/11 legislation effectively meant that two federal agencies had been blessed by Congress with significant authority over explosives detection work with dogs.

The 9/11 Act led to no regulatory releases, though the Federal Register in 2009 referred to the National Explosives Detection Canine Team Program, which noted that survey data was being “collected electronically through the NEDCTP secure Canine Web site (accessible by authorized personnel only)” to provide feedback to the Chief of NEDCTP, “staff and supervisors on how the training material was presented and received.”(25) The TSA described NEDCTP as follows in March 2009:

“The National Explosives Detection Canine Team Program (NEDCTP) is a partnership between TSA, airports, and local law enforcement. The NEDCTP supports TSA’s mission by preparing law enforcement canine-handlers, who are not Federal employees, and canines to serve on the front lines of America’s War on Terror. These canine teams (handler and canine) are trained to quickly locate and identify dangerous materials that may present a threat to transportation systems.”(26)

In July 2011, the Department of Homeland Security published a report indicating the Department’s intent regarding canine training and deployment:

“Establish DHS as a center of excellence for canine training and deployment. Canines serve essential roles in homeland security. Specially-trained canines and their handlers are essential elements of terrorism prevention efforts at the Federal, State, local, tribal, and territorial levels and in the private sector. Canines also serve essential roles in detecting narcotics at the air, sea, and land ports of entry, and in search and rescue activities following disasters. DHS will increase specialized breeding activities for canines, enhance its training and certification of canines and handlers, and become a center of excellence for employment of canines across the homeland security missions.”(27)(emphasis added)

Thus, the ultimate authority on the optimal methods of U.S. explosives detection canine training could now be the Department of Homeland Security, not an agency in the Department of Justice. Acting Deputy Attorney General Grindler’s resolution of the issue might not have been final, as DHS dogs were certainly beyond his jurisdiction.

A 2011 thesis by John P. Joyce at the Naval Postgraduate School in Monterey, California,(28) describes the TSA as having “partnered with the Federal Bureau of Investigation and National Institute of Justice to sponsor the Scientific Working Group on Dog and Orthogonal Detection Guidelines (SWGDOG) to enhance the performance of the EDCTs [Explosive Detection Canine Teams] …. The SWGDOG was established in January 2005 in an effort to develop consensus-based guidelines that can be shared across all groups involved in canine detection work….”(29) Given DHS’s interest in expanding the impact of its canine training, this may mean that by 2011 TSA was siding more with the FBI on canine issues than with the ATF.(30) It may be argued (and certainly would be by anyone in the press office of either agency) that DHS and the FBI (or DOJ) will see no need to carry on the same sort of turf war as has been the case between ATF and the FBI, but government agencies seem to have an inevitable instinct for defending their authority.

Website Claims

The ATF webpage devoted to accelerant and explosives detection canines states the following:

“As the Federal Government explosives and postblast experts, ATF offers certified explosives detection canine to other Federal, State, local and foreign law enforcement agencies. ATF’s uses a food and praise reward training methodology that exposes canines to five basic explosives groups, including chemical compounds used in an estimated 19,000 explosives formulas. It is believed by ATF that exposing canines to various explosives from the basic explosive families will give the dog the ability to detect the widest range of commercial or improvised explosives possible when working in field. Successful detection of an explosive or firearm earn the canine a food and praise reward, which encourages repetition.(31) To earn ATF certification, all dogs must pass a blind test wherein they must successfully detect 20 different explosives odors, two of which they were never exposed to during training. The scientific methodology, and the training and testing protocols are certified by the ATF National Laboratory, and produce an extremely versatile, mobile, and accurate explosives detection tool.”

This does not read as though the agency has ceded authority to any other agency either within the Department of Justice or without.

The Transportation Security Administration is equally confident in the webpages devoted to its National Explosives Detection Canine Team (NEDCT) program:

“TSA's National Explosives Detection Canine Team Program prepares dogs and handlers to serve on the front lines of America's War on Terror. These very effective, mobile teams can quickly locate and identify dangerous materials that may present a threat to transportation systems. Just as important, they can quickly rule out the presence of dangerous materials in unattended packages, structures or vehicles, allowing the free and efficient flow of commerce.

“Law enforcement officers from all over the country travel to TSA's Explosives Detection Canine Handler Course at Lackland Air Force Base in San Antonio, Texas where they are paired with one of TSA's canine teammates. These dogs are bred specifically for the program by TSA's puppy program, also at Lackland AFB. German Shepherds, Belgian Malanoises, Vizslas and other types of dogs are used in the program because of their keen noses and affinity for this type of work. In addition to providing a highly trained dog and handler training, we provide partial funding for handler salaries, care and feeding of the canines, veterinary and other costs associated with the dog once the teams return to their hometowns.” (emphasis added)

The ability to provide “partial funding” is certainly proof of power. Lackland Air Force Base, sometimes called “Dog School,” is the largest canine training facility in the country, and the location where many military working dogs are trained. Thus, DHS is also likely using MWD training methods for domestic explosives detection dogs.

The FBI keeps a relatively low profile as to canines on its website, emphasizing its scientific approach to the use of canines. The website, on the other hand, has seven webpages that refer to SWGDOG (on November 22, 2011, in any case), more than any other federal website.

SWGDOG’s website states that the organization “is a collaboratively funded effort of the DHS, FBI, NIJ [National Institute of Justice], and TWSG [Technical Support Working Group].” Although the TWSG does have ATF connections, these appear to involve non-canine operations. SWGDOG has one representative from ATF, so it is not clear if the list of collaborative funders means merely that ATF does not now provide funding, or something more political.

If SWGDOG is to be granted such broad influence over federal canine policies, comments on proposed guidelines should be made public, and the organization should hold a public hearing before making any guideline final. Representatives of federal agencies intending to expect compliance with the guideline for purposes of contracting with private entities should be present and willing to answer questions regarding their interpretation of the proposal.

Is Uniformity Essential?

Divergence in training approaches is not necessarily a bad thing, despite the continuing concerns of the Department of Justice. Although the investigative authority of the agencies overlap, and any investigation could shift from one side to the other as new evidence concerning the perpetrators and targets develops, having dogs under different regimens, with different volumes of target samples, may to some extent make it difficult for criminals and terrorists to know how to hide their bombs. On the other hand, any approach that cannot be shown to be reliable should be jettisoned.

Conclusion

ATF has trained hundreds of dogs for its own agents and for other law enforcement units around the country. ATF has also partnered with a number of certifying organizations (USPCA, NAPWDA, IPWDA and NPCA) to achieve a consensus for canine explosives detection capabilities as part of the National Canine Initiative Explosives Detection Canine Certification. ATF has earned the loyalty of many explosives detection handlers around the country by having the agency’s chemists send highly sensitive peroxide-based explosives to events sponsored by such organizations.

The FBI relies on others to train its dogs (including the ATF, according to the ATF website), but has supported the development of SWGDOG, which seeks to become a standards authority for training and testing law enforcement canines in the United States (though many certifying organizations do not see SWGDOG as a resource, but more as a competitor).

TSA has control of Lackland Air Force Base, the largest canine training facility in the country, and has also supported SWGDOG. DHS also uses dogs in other subagencies, including U.S. Customs and Border Protection, the U.S. Coast Guard, FEMA, and the U.S. Secret Service. SWGDOG, by making DHS a fan, may have effectively won control of federal explosives detection canine standards.

It is unlikely that any of these agencies will easily give up its programs or sphere of influence, and since the canine programs of the agencies are connected with other aspects of their operations, it will be increasingly difficult to impose a policy of consolidation in training philosophies. DOJ may now be accepting a bifurcated canine philosophy in its ranks, hoping to minimize friction, or at least the public evidence of friction. DHS, through TSA, is unlikely to have to accept any DOJ approaches it does not like, both through sheer numbers and because of its robust budget.

1. In a March 4, 2004, memorandum, the Attorney General identified explosives-related training as an issue for an Explosives Review Group (ERG) to review. The report produced by the ERG had recommended that Department of Justice components should use only ATF-certified explosives detection canines.
2. The FBI had 15 dogs for its uniformed officers in 2010, while ATF had over 300 dogs worldwide. James W. Hawkins, Explosives Recognition and Awareness Training: A Psychological Approach to Pre-Blast Mitigation, Master’s thesis, Missouri University of Science and Technology, 2010).
3. Administrators inside of the government were well aware that the feud between the FBI and ATF continued after 2004. The Inspector General states that “in January 2007 the ERG [Explosives Review Group] reported to the Deputy Attorney General that training related to post-blast, canines, and render-safe procedures either had not been implemented or remained highly contested.”
4. It is appropriate to note that the issue does not have to do with the number of dogs owned by the agencies. The FBI had 15 dogs for its uniformed officers in 2010, while ATF had over 300 dogs worldwide. Hawkins (2010).
5. PL 104-208 (September 30, 1996).
6. 62 Fed. Reg. 50982 (September 29, 1997
7. 64 Fed. Reg. 41487 (July 30, 1999).
8. ATF maintains the Canine Training and Operations Support Branch in Fort Royal, Virginia. This facility develops explosives detection dogs for federal, state, and local agencies.
9. The 2009 report included information on the funding of SWGDOG, showing that it received funds from the National Institute of Justice and the FBI totaling just over $500,000 from 2004 through 2008.
10. U.S. Department of Justice, Office of the Inspector General, Audit Division, Explosives Investigation Coordination Between The Federal Bureau of Investigation, and the Bureau of Alcohol, Tobacco, Firearms and Explosives, Audit Report 10-01 (October 2009).
11. The FBI has a member of the SWGDOG Executive Board, but ATF does not (board webpage checked 11/21/2011). ATF has a regular member. The Inspector General does not mention that there are also members selected from associations and other nonprofit organizations. The 55 SWGDOG members are listed on the organization’s website under the heading “Membership.”
12. The involvement of SWGDOG members in patent applications and other profit-making activities that may correlate with proposed standards has apparently not been of concern to the federal agencies.
13. Administrators inside of the government were well aware that the feud between the FBI and ATF continued after 2004. The Inspector General states that “in January 2007 the ERG [Explosives Review Group] reported to the Deputy Attorney General that training related to post-blast, canines, and render-safe procedures either had not been implemented or remained highly contested.”
14. SWGDOG’s standard SC8-Substance Detector Dogs: Explosives Detection states that “[m]inimum weight of substance odors being tested for certification shall be 113.4 grams (1/4 lb).”
15. ATF news releases often mention that ATF trainers use trace amounts of explosives. See ATF News Release, ATF Continues to Put Bite on Explosives (August 14, 2009).
16. Relationships of the agencies and organizations discussed here with individuals entities making private profit from canine scent detection approaches is a topic to be discussed separately.
17. GAO, Technology Assessment: Explosives Detection Technologies to Protect Passenger Rail, GAO-10-898 (July 2010).
18. Id., 40-41.
19. GAO, Maritime Security: Ferry Security Measures Have Been Implemented, but Evaluating Existing Studies Could Further Enhance Security, GAO-11-207 (December 2010), p. 32, n.38.
20. See TSA’s Explosives Detection Canine Program: Status of Increasing Number of Explosives Detection Canine Teams, GAO-08-933R (July 31, 2008).
21. Government Accountability Office, Opportunities to Reduce Potential Duplication in Government Programs, Save Tax Dollars and Enhance Revenue, GAO-11-318SP (March 2011).
22. The GAO emphasized coordination in following up on the protocol released by Grindler in a 2011 report. GAO, Law Enforcement Coordination: DOJ Could Improve Its Process for Identifying Disagreements among Agents, GAO-11-314 (April 2011).
23. PL 110-53, 121 Stat. 266 (August 3, 2007).
24. Conference Report to Accompany H.R. 1.
25. 74 Fed. Reg. 55248 (October 27, 2009); 75 Fed. Reg. 4579 (January 28, 2010).
26. 74 Fed. Reg. 9621 (March 5, 2009).
27. Department of Homeland Security (July 2010). Bottom-Up Review Report.
28. Joyce, John P. (March 2011). Thesis: The Transportation Security Administration’s Four Major Security Programs for Mass Transit—How They Can Be Improved to Address the Needs of Tier II Mass Transit Agencies. Naval Postgraduate School, Monterey, California.
29. Joyce cites the 2005 statement of David Kotny, Director of the National Explosives Detection Canine Team Program, to the Subcommittee on Management, Integration, and Oversight of the House Committee on Homeland Security.
30. DHS has a member on the SWGDOG Executive Board. In his thesis, Joyce found that some mass transit authority officials noted that dogs “trained in a closed and somewhat sanitized airport environment are not conditioned to operate in a mass transit environment, and therefore are not as effective as those trained exclusively on mass transit.”
31. Whether this five-component approach will in fact allow a dog to alert to any explosive containing one of the components is far from certain. There is evidence that different ratios in a mixture will affect a dog’s ability to recognize a component in the mixture. For a recent study on this issue in narcotics detection, see Macias, M.S. and Furton, K.G. (2011). Availability of Target Odor Compounds from Seized Ecstasy Tablets for Canine Detection. Journal of Forensic Sciences, 56, 1594-1600, noting: “MDMA solutions were analyzed by liquid chromatography–mass spectrometry. Analysis of these samples showed a wide variance of MDMA (8–25%). Headspace SPME-GC/MS analysis showed that several compounds such as 3,4-methylenedioxyphenylacetone and 1-(3,4-methylenedioxyphenyl)-2-propanol are common among these MDMA samples regardless of starting compound and synthesis procedure. However, differences, such as the level of the various methylenedioxy starting compounds, were shown to affect the overall outcome of canine detection, indicating the need for more than one MDMA training aid. Combinations of compounds such as the primary odor piperonal in conjunction with a secondary compound such as MDP-2-OH or isosafrole are recommended to maximize detection of different illicit MDMA samples.”

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

The Dogs of the Conquistadors

2011-11-18T07:08:00.087-05:00

Reading Dogs of the Conquest by John and Jeannette Varner reminded me of reading Dee Brown’s Bury My Heart at Wounded Knee almost forty years ago. After a while you just want it to stop. Every page in the Varners' book has a horror. Just one example:

“A letter of protest, dated June 4, 1516, from fourteen Dominican priests of Hispaniola [the island that now contains Haiti and the Dominican Republic] to a royal counselor related … how on one occasion some Christians [Spanish soldiers on the island] came across an Indian woman with a nursing child in her arms. Since their dog was hungry, they seized the child and tossed it to the dog, which tore it to pieces in the presence of the mother.”

One can find histories of the conquistadors with scant mention of the dogs they brought and bred in the New World. The Varners have brought the horrors perpetrated with the dogs into the light, just as Dee Brown made us see that settling of the West was also a genocide.

Dogs in Fifteenth and Sixteenth Century European Warfare

Large numbers of dogs were used in warfare from the late Middle Ages into the Renaissance. Before the age of exploration, the Spanish Christians had used dogs against the Moors (Varner & Varner, p. xvi). King Henry VIII was said to have sent hundreds of war dogs to the Emperor Charles V of Spain in a war with France, “each garnished with good yron collars” (Lloyd 1948, Weir 2002, p. 33). Elizabeth may have provided dogs to the Earl of Essex to use in an Irish rebellion, though Lloyd (p. 179) questions the historicity of this report.

Jaques du Fouilloux, some of whose plates of hunting scenes have been reproduced in a prior blog, depicted an ancient voyage to Brittany by hunters who fled the flames of Troy, but instead of settling in Rome had gone to Bretaigne (Brittany), believing there would be good hunting there. This is the first plate above. (Double click to enlarge the image.) As was true of Renaissance depictions of antiquity, the ships and clothing were contemporary, not ancient, and it is quite possible that du Fouilloux had seen Spanish, English, or French ships with war dogs pacing the decks.

War Dogs in the New World

Gonzalo Pizarro, brother of Francisco, brought as many as a thousand dogs with him in an expedition begun in Peru in 1541. This may be the largest assembly of attack dogs in history, but the Spanish had dogs they could use in battle against the natives as early as the second voyage of Columbus (Varner and Varner, p. 4, Coren, p. 74), who had brought Spanish war dogs to Hispaniola in 1493. Columbus used a dog in dispersing a hostile group of Indians that came to stop his landing in Jamaica in 1494. He used 20 dogs at the Battle of Vega Real in 1495, as shown in the plate from Herrera. (Only four dogs are visible, apparently an artistic limitation.) By 1509, dogs running loose on Hispaniola were so numerous that they were killing livestock and themselves began to be hunted.

The Historia General of the Spanish historian, Antonia de Herrera y Tordesillas (1601-15), may contain the most detailed images of dogs in battles between the Spanish and the Indians. The next plate from the cover of the first volume of the Historia General shows another scene in which the dogs are being sent ahead of the Spanish forces. One dog is still held by a leash, but the others have been loosed and are running simultaneously with the cavalry, perhaps in part to make it difficult for the Indians to choose a target. The dogs are not shown as armored in any of the scenes in Herrera's work, but this is generally the case in contemporary depictions of the conquistadors. The final plate from Herrera shows the dogs still on leashes at the center of the Spanish line, with cannons on the outside. The timing of their release was clearly timed for maximum effect both in terms of defensive value to the men and to add to the terror just before the contact of the front lines.

Why did the use of attack dogs reach its zenith in the New World? War dogs had been taught to attack the enemy since antiquity, but the numbers brought to and then bred in the New World far exceed what is known about any other military use of attack dogs. Why was it worth the while of the Spanish invaders to bring dogs for their explorations and subjugations? The answer probably lies in the fact that the Indians dressed differently from the Spanish, had different diets, different skin color, and at least initially a heart-stopping awe of the huge mastiff-like animals the Spaniards used against them. (Dogs were widely known in the New World, but those preferred by most Meso- and South American Indians were small dogs, such as the beautiful plate of an Aztec dog from the 16th century Florentine Codex of Friar Bernardino de Sahagún.)

The contrast between the people who used the dogs and those against whom they were used differed from most European wars going back to antiquity where the armies dressed alike, had the same diets and skin color, and became indistinguishable in the field of battle. Like the elephants used by Hannibal and some Macedonian generals, dogs brought the risk that they could turn against those who employed them. That risk was minimal in the Americas and the advantage this provided was realized not just by the Spanish, but also by the Portuguese, French, English, and finally, during the period of slavery, the Americans.

The dogs were not always rewarded for their service. The same dogs that made the expedition of Gonzalo Pizarro so formidable gave up their lives when his army, facing starvation, ate all but two of them. (Markham, p. 17)

Care and Training

The dogs were of the late medieval hunting types—mastiffs, alaunts, and greyhounds—in Spanish, mastíns, alanos, and lebrels. (For detailed descriptions of hunting dogs of the period, see Cummins 1988.) Varner and Varner (p. 36) note that even that dogs identified by the conquistadors as belonging to one group might well have had blood of others. Although greyhounds were often kept separate from other hunting animals in European castle life, it is not clear if such an effort was made in the New World. An Indian revolutionary known as Enrique, who was baptized by Spanish priests on Hispaniola but rebelled against his Spanish lords in 1519, was said to have kept dogs for hunting isolated and under the care of only two or three families. This might reflect an early Spanish practice of isolating dogs from natives so that they would not become friendly to those whose scent they were trained to track and attack. (Helps, vol. III, p. 106)

Aldrovandus (1522-1605) describes the training of war dogs as prescribed by Blondus:

“The dog ought to be trained up to fight from his earliest years. Accordingly some man or other is fitted out with a coat of thick skin [pelle densa], which the dog will not be able to bite through [quam canis lacerare nequeat], as a sort of dummy: the dog is then spurred on against this man, upon which the man in the skin runs away and then allows himself to be caught and, falling down on the ground in front of the dog, to be bitten [morderi patiatur]. The day following he ought to be pitted against another man protected in the same manner, and at the finish he can be trained to follow any person upon whose tracks he has been placed [super cuius vestigiis collocabitur]. After the fight the dog should be tied up, and fed while tied up, until at the finish he turns out a first-class defender of human being. Blondus is even of the opinion that from time to time it is a good thing to go for this dog with drawn swords [strictis mucronibus]; in this way, he thinks, the dog will develop his spirit and courage to the utmost; and then of course you can lead him against real enemies. And Blondus adds that such dogs are frequently to be met with in Spain of the present day [in multis Hispaniae locis hodie habentur].

Aldrovandus even says that a relative of his, a senator from Bologna, had such a trained dog for his defense. Since Aldrovondus was citing Flavius Blondus (1392-1453) for this training regimen, he could not have been describing the use of dogs in the New World. Although referring to this training as being for defensive purposes, the dogs could be used in attack situations and Blondus may have been describing dogs that were used against the Moors.

Dogs in Expeditions

In 1509, Alonso de Ojeda left Santo Domingo for Carthagena, with horses and dogs. The same year Juan de Esquivel attacked Indians that had fled to the mountains of Jamaica. The dogs he brought with him were said to be “almost as destructive as his musquetry.” (Long, p. 959) In 1513, Vasco Núñez de Balboa set out to find the “other sea,” the Pacific, with 190 men and dogs, “which were of more avail than the men.” (Helps, vol. I, p. 358) Encountering resistance from an Indian leader named Pacra, Balboa had him torn to pieces by dogs. Balboa had a dog named Leoncico supposedly able to distinguish between an “Indio de Guerra” and an “Indio de Paz.” Gonzalo Fernández de Oviedo y Valdés, the Spanish historian, gives a detailed description of the dog:

“We must not omit to mention a dog which Balboa possessed, called Leoncico [little lion], from the dog Becerrico [little bull], of the island of St Juan, and no less famous than his parent. This dog gained his master, in this and other entries, more than 2000 pesos of gold, because he received the share of a companion, in the distribution of gold and slaves. And truly the dog deserved it better than many sleeping partners. This dog’s instinct was wonderful; he could distinguish between the warlike or peaceful Indian; and when the Spaniards were taking or pursuing the Indians, on loosing this dog and, and saying, ‘There he is—seek him,’ he would commence the chase, and had so fine a scent, that they scarcely ever escaped him. And when he had overtaken his object, if the Indian remained quietly, he would take him by the sleeve, or hand, and lead him gently, without biting or annoying him, but if he resisted, he would tear him in pieces. Ten Christians escorted by this dog, were in more security than twenty without him. I have seen this dog, for when Pedrarias came to this territory, in the year 1514, he was still alive.... He was of a red colour, had a black nose, was of a middle size, and not handsomely formed, but stout and powerful, exhibiting many wounds, which in the course of these wars he had received from the Indians. The dog was at last maliciously poisoned. Some dogs of his race were left; but nothing equal to him has been seen in these regions.” Oviedo’s General History, book xxix, chap. 8. (Hodson translation, p. 18) The wounds were most probably from arrows, which both a man and a dog can often survive.

Evidently, the teaching of the dogs to attack involved some repeated behaviors on the parts of those attacked, so that individuals not in certain postures or acting aggressively were not part of the attack command for the dogs.

In 1513, Balboa used his dogs to tear apart 50 Indians allied with the chief Torecha in the domain of Quarequa. This event led to one of the most widely produced depictions of war dogs in the New World, Theodore de Bry’s engraving of dogs attacking defenseless and nearly naked Indians. based on the account of Bartolomé de las Casas. After that, the barking of the dogs was often enough to disperse any group inclined to oppose Balboa’s advance. (Hodson, pp. 45, 54)

The dogs were not always effective. In meeting resistance from Indians at Santa Marta, now in Colombia, in June 1514, Pedro Arias de Avila, often known as Pedrarias, the dogs failed to attack the Indians and began fighting among each other (Varner and Varner, p. 47). Although hardly consistent in their opposition, the priests sometimes recognized that the dogs made their efforts at converting the natives more difficult. Father Domingo de Betanzos believed that the noise of weapons and the barking of fierce dogs “had so stunned the Indians as to render them deaf to the Christian Faith.” (Helps, vol. III, p. 312)

Mexico

Cortés landed in Mexico with dogs and other animals, as shown above in a plate from the Florentine Codex by Friar Bernardino de Sahagún. The Aztec account of the conquest of Mexico by Hernán Cortés in 1519 includes a description of the dogs running ahead of the column, their muzzles high, lifted to the wind, saliva dripping from their jaws. (Broken Spears, p. 41) Moctezuma was told that the Spaniards rode deer without horns, and he received an extensive description of the dogs:

“Their dogs are enormous, with flat ears and long, dangling tongues. The color of their eyes is a burning yellow; their eyes flash fire and shoot off sparks. Their bellies are hollow, their flanks long and narrow. They are tireless and very powerful. They bound here and there, panting, with their tongues hanging out. And they are spotted like an ocelot.”

An Aztec visual perspective on Cortés’s dogs can be found in a mid-16th century painting on a large cloth panel, or lienzo, referred to as the Lienzo de Tlaxcala (Kranz 2007). The original lienzo is lost, but copies were made from the original, including the depiction here of soldiers marching with a dog on leash (Chavero 1892).

As late as 1805, a Spanish Lieutenant, Antonio Narbona, entered the region of Arizona on a punitive expedition, with horses and dogs, an event captured in a Navajo pictograph at Standing Cow Ruin in Canyon de Chelly. Bones recovered from the area have been identified as coming from Spanish greyhounds (Dix 1980). Jett (1981) questioned whether the figures may all be of horses, displayed as smaller to give a distance perspective to the Spanish column. The smaller figures, however, appear riderless and unleashed, and the coloration could be that of Spanish dogs of the sort that in Louisiana founded the Catahoula breed. The picture of the rock art at Canyon de Chelly was taken by Cori Ryan, who maintains a website with many excellent photographs of rock art. (Again double clicking will allow a larger image and the reader can make up his or her own mind.)

Peru and the Straits of Magellan

Olive trees were brought from Seville to Peru in 1560 but, as only three of 100 plants survived the journey, they were planted in a fruit garden near Lima. It was necessary to post 100 slaves and 30 dogs to guard the trees night and day. (Markham, 1864a, p. 401)

Pedro Sarmiento de Gamboa had dogs with him as he explored the Straits of Magellan in 1579. Gamboa’s brief narrative indicates he may not have expected his dogs to be excessively warlike:

“It was noteworthy that our dogs, and those of the natives, flew at each other until they came within four paces, when they turned round without touching, and we could never get them to attack again.” (Markham, 1895, p. 322)

After the Conquest

As the New World was subjugated, dogs began to take on less war-like responsibilities, and became pets of all members of the societies that emerged after the conquest. Felipe Guamán Poma de Ayala (1535 - c. 1615) wrote an illustrated chronicle, Nueva Corónica y Buen Gobierno, showing daily life in the Andes. One plate shows the author walking near Lima with his son and two dogs, named Amigo and Lautaro, both from mastiff or possibly alaunt lines. The next plate below shows an Andean hunter with a falcon and two dogs. The dog behind the hunter is likely an indigenous small dog, but the one preceding him appears to have the blood of an alaunt or mastiff, probably having mixed with an indigenous line. The final plate shows a city, perhaps with hunting dogs running in the fields before the walls. (See Adorno 2000.)

Adoption of Spanish Practices in the Americas

Even after the conquest, the Spaniards were said to use their bloodhounds to track down natives for sport, or in order to train them to catch human game.

By 1638, the Dutch used dogs against the Indians. (Southey, vol. III, p. 488). During the final Maroon War, which began in 1795, the Jamaican legislature sent to Cuba for large hunting dogs to seek out and destroy the blacks in their stronghold. (Long, vol. II, p. 79) The French employed Cuban dogs in a Haitian rebellion. (Childs, p. 42)

The success of Cuban mastiffs in the Maroon War led to a recommendation to the American War Department in 1839 that they be used against the Semonoles in Florida:

“My object in this communication is principally to show how much benefit was derived in the Maroon war from the use of dogs, and to suggest to the War Department the propriety of turning its attention to similar means of prosecution of the war in Florida. I might deduce facts from the ablest writers in Ethics and International Law, to prove that the employment of these animals against the Seminoles, who have been guily of every enormity, would violate no moral duty; and the general tendency of events during the last two hundred years, goes to show that the transgressions of our red brethren, notwithstanding the declaration of enthusiasts, has attracted upon them the displeasure of the Almighty, as did the cities of the Plain and the people of Edom in days of old.” (Homans, p. 147)

Professor Matt D. Childs of the University of South Carolina notes that in the American Civil War, “Cuban dogs aided the Confederacy in its attempt at secession by pursuing runway slaves as battlefields reached the plantation zones of the South.” (Childs, p. 42) The post-Civil War use of the same tracking dogs in finding criminals is discussed in detail in Police and Military Dogs (Chapters 3 and 5).

1. Adorno, R. (2001). Guaman Poma and His Illustrated Chronicle from Colonial Peru. Museum Tusculanum Press.
2. Aldrovandi, Ulyssis (1645). De Quadripedibus. Translation from Ash, Edward C. (1927). Dogs: Their History and Development, vol. II. Ernest Benn Ltd., London.
3. Brown, D. (1970). Bury My Hart at Wounded Knee. Rinehart & Winston, New York.
4. Chavero, A. (1892). Explicacion del Linzo de Tlaxcala. In Homenaje á Cristóbal Colón: Antigüedades mexicanas. México: Oficina Tipográfica de la Secretaría de Fomento.
5. Childs, Matt D. (2006). The 1812 Aponte Rebellion in Cuba and the Struggle Against Atlantic Slavery. University of North Carolina Press.
6. Coren, S. (2002). The Pawprints of History. Free Press, New York.
7. Cummins, J. (1988). The Art of Medieval Hunting: The Hound and The Hawk. Weidenfeld & Nicolson. London.
8. Dix, A.S. (1980). Spanish War Dogs in Navajo Art at Canyon de Chelly, Arizona. The Kiva, 45(4), 279; (1983). More on Spanish War Dogs in Canyon de Chelly Rock Art: A Reply to Jett. The Kiva, 48(4), 323.
9. Fontana, B.L. (2000). Pictorial Images of Spanish North America. Journal of the Southwest, 42(4).
10. Fouilloux, Jaques du (1502). La Venerie.
11. Helps, Arthur (1855). The Spanish Conquest of America. John W. Parker & Son, London.
12. Herrera, A. (1601-1615). Historia General de los Hechos de los Castellanos en las Islas y Tierra Firme del Mar Oceano. Madrid.
13. Hodson, Mrs. (1832). Lives of Vasco Nunez de Balboa, and Francisco Pizarro from the Spanish of Don Manuel Josef Quintana. William Blackwood, Edinburgh.
14. Homans, B. (ed.) (1839). Army and Navy Chronicle, vol. 9.
15. Jett, S.C. (1981). War Dogs in the Spanish Expedition Mural, Canyon del Muerto, Arizona? The Kiva, 46(4).
16. Kranz, T.B. (2007). Sixteenth-Century Tlaxcalan Pictorial Documents on the Conquest of Mexico. In Sources and Methods for the Study of Postconquest Mesoamerican Ethnohistory, ed. James Lockhart, Lisa Sousa, and Stephanie Wood (e-book). Eugene, Oregon: Wired.
17. Leon-Portilla, Miguel (1962). Broken Spears: The Aztec Account of the Conquest of Mexico. Beacon Press, Boston.
18. Lloyd, H.S. (1948). The Dog in War. In Vesey-Fitzgerald, B. (ed.). The Book of the Dog. Nicholson and Watson, London.
19. Long, Edward (1774). The History of Jamaica. London.
20. Markham, Clements R. (1864). Expeditions into the Valley of the Amazons. The Hakluyt Society; (1895). Narratives of the Voyages of Pedro Sarmiento de Gamboa to the Straits of Magellan. The Hakluyt Society; (1864a). The Travels of Pedro de Cieza de Léon, A.D. 1532-50. Hakluyt Society.
21. Prescott, William H. (1843). History of the Conquest of Mexico, vol. II. Richard Bentley, London.
22. Prescott, WIliam H. (1847). History of the Conquest of Peru, vol. I. Baudry’s European Library.
23. Southey, Robert (1810). History of Brazil. London.
24. Turbervile (1576). Booke of Hunting.
25. Varner, John G., and Varner, Jeannette J. (1983). Dogs of the Conquest. University of Oklahoma Press, Norman.
26. Weir, A. (2002). Henry VIII: The King and His Court. Random House Digital.

Thanks to Suzanne G. White, Richard Hawkins, and Brian Duggan for help in completing this blog. Thanks to Cori Ryan for the excellent photograph of the Arizona petroglyph.

K9 Fraud! Essential Reading for Handlers, Lawyers, and Judges

2011-11-11T07:10:00.075-05:00

A book that should be in every police canine handler’s library, as well as the library of every lawyer and judge who handles cases involving canine evidence, is K9 Fraud! Fraudulent Handling of Police Search Dogs, by Resi Gerritsen and Ruud Haak (Detselig Enterprises Ltd., Calgary, Canada, 2010). The authors are married and live in the Czech Republic near the Austrian border, where they are training directors for the International Red Cross Federal, the UN, the International Rescue Dog Organisation, and the Fédération Cynologique Internationale.

Gerritsen and Haak are also the authors of K9 Professional Tracking: A Complete Manual for Theory and Training (Detselig, 2001). With Adee Schoon, Haak wrote K9 Suspect Discrimination: Training and Practicing Scent Identification Lineups (Detselig, 2002). Haak is the editor of Onze Hond, one of the widely circulated dog magazines in Europe. In the interest of full disclosure, my book on service and therapy dogs was mentioned favorably in Onze Hond.

The subtitle of K9 Fraud! is somewhat unfortunate in its reference to police search dogs, as this might suggest to American readers that the book is about search and rescue operations. Most of the chapters actually discuss fraud in scent identification lineups and in tracking and trailing. An entire chapter is devoted to canine responsiveness to human gestures, which any lawyer, or any judge, dealing with a cueing claim should read. The publisher did not serve this important work well in failing to provide an index, and I found it necessary to use post-its to highlight pages I will want to refer to again.

Those who have read other books by these authors, and authors with whom they have associated, will find some of the material familiar, if not on occasion repetitive. The difference is that where the other books (at least the ones with which I am familiar) look at canine practice from the perspective of how to do it right, this book focuses on how it can be done wrong. I am inclined to think that the latter approach may be more necessary for lawyers and judges, particularly in the U.S. As I pointed out in recent discussions of a drug bust and a station identification, many American judges are still inclined to accept the work of canine handlers uncritically and do not adequately consider what might have been done wrong. In all fairness, I must acknowledge that some courts, such as the Florida Supreme Court, have begun to look past the mystique and require a solid foundation for the admission of canine evidence.

Gerritsen and Haak are not afraid to take on handlers by name, some of whom are prominent and spoken of with respect. Of course, these authors are writing from and probably more influential in continental Europe than in the U.S.

A Botched Murder Prosecution Leads to Blanket Exclusion of Lineups in the Netherlands
A murder investigation and prosecution led to the exclusion as evidence of scent lineups performed in the North and East Netherlands over a period of nine years because it was found that a critical requirement for performing a scent lineup had been ignored by police during this period. The mistake was regarded as so critical that six police dog handlers were sentenced to prison for two years. One of the cases that led to this exclusion is discussed by Gerritsen & Haak in detail.

Jacqueline Wittenberg, a rich old widow living in the Dutch town of Deventer was murdered on September 23, 1999, but was not found for several days. There were no signs of a break-in. It was known that she did not admit strangers to her home, and only admitted people she knew if she expected them. The last one to call her on the night of the murder was Ernest Louwes, her tax advisor. Louwes claimed to have been far from Deventer at the time the call was made. A telecom expert testified, however, that if Louwes had made the call from anywhere but Deventer, the call would not have been relayed through the telecom antenna in Deventer.

A knife was discovered two days later under a neighbor’s porch. The neighbor who found it picked it up with his sleeve to avoid leaving his own fingerprints on it. The knife was used in a canine scent identification lineup, resulting in the identification of Louwes as having left scent on the knife. In 2002, the Supreme Court of the Netherlands concluded that the knife had not been the murder weapon. Louwes was released in 2003.

DNA extraction from the blouse that Wittenberg was wearing when she was murdered again pointed to Louwes, however, and he was resentenced in 2004 to 12 years in prison. Suspicions regarding Wittenberg’s handyman and his girlfriend began to surface, however, and additional investigation brought to light a number of discrepancies in their earlier stories. Louwes was again released in 2009. Dutch law still considers Louwes to be the murderer, but a number of observers now doubt his guilt.

The fact that Louwes was identified in a scent lineup where a knife that was later found not to have been used in the crime has apparently never been explained.

Prosecution of Dutch Police for Scent Lineup Failures
The paragraph following the description of the Deventer case by Gerritsen and Haak says much about why scent lineups have come into question in Europe, despite being in general much more rigorously performed there than in the United States:

“The seven police dog handlers of North and East Netherlands region were prosecuted for perjury and forgery, because it was found that they hadn’t performed the scent identification line-ups exactly in accordance to the regulations. According to these rules, the dog handler may not know the position of the scent carriers of the suspect, to avoid influencing his dog. This step was found to be omitted in many cases between September 1997 and March 2006. Even worse, was that the official reports stated that all identification line-ups were processed in compliance with the standard codes of operation. In November 2007, the seven police dog handlers were convicted to penal labor of 240 hours. Six of the seven handlers were also incarcerated for two years and were removed entirely from their positions. Only the dog handler that had shed light on situation was allowed to continue his duty.”

Whether SWGDOG guidelines should be recognized as U.S. national standards involves issues of transparency and delegation of regulatory authority. Even if such issues were overcome and there were some general recognition of SWGDOG as establishing best practices applicable in a broad range of criminal investigative contexts, it is unlikely that the organization would ever be the beneficiary of criminal enforcement for failures to implement its recommendations.

A Tool for Judges and Lawyers
In researching Police and Military Dogs, I found that early decisions from the end of the 19th and the beginning of the 20th century had a better feel for what dogs could do than more recent cases. Many judges of those times—particularly judges in the South, where tracking largely began as a police function—were hunters and experienced with tracking of animals. More recent decisions, in contrast, often showed undue deference to the testimony of handlers, or, alternatively, regarded canine evidence as being produced by silly animals, hardly worthy of the court’s time, dogs of the sort the judges saw in the elevators of their high-rise condo buildings. For a brief time I wondered if I could create a taxonomy of pro-dog and anti-dog judges based on their tolerance for and appreciation of canine evidence, but no clear pattern of this sort emerged as I read over 1,200 judicial decisions. What did emerge was that many judges failed to recognize the slow but steady progress that was being made in the practical applications of canine olfaction, and the decisions often lacked any real understanding of how dogs behave or the limits of their skills. Appellate decisions often avoided careful analysis of trial court failures by labeling as harmless the errors that appeared to have been made.

Another circumstance I noted as I researched police canine law was an increase in claims of ineffective assistance of counsel being made by defendants convicted in significant part by canine evidence. No law school that I am aware of offers a class in this increasingly active area of criminal law. Reading through the lines of opinions, it was often apparent that defense counsel was quite effective in raising procedural issues and in offering stiff resistance to most evidentiary aspects of the prosecution’s case, but cross-examination of police dog handlers was often anemic and missed apparent weaknesses in their testimony. Defense experts were chosen for some general canine expertise, or for superior academic credentials, but were often not versed in the areas where the prosecution’s case might have been vulnerable to a countervailing perspective. Lines of questioning often bogged down on issues that did not bolster any viable defense position, while other aspects of a handler's testimony remained unaddressed.

I should say that this lack of adequate legal attention to canine evidentiary issues also comes from those, such as the Innocence Project, who want to have police dog work labeled as “junk science” and excluded altogether. Here the weaknesses of judges and lawyers are being distilled into a knee-jerk battle cry against the acceptance of canine evidence at all.

I recommend that all these participants in the criminal justice system read K9 Fraud! before writing another brief, opinion, or press release.

Thanks to L.E. Papet and Gail McConnell for suggestions that improved this blog.

Canoe Conquests of the Western Pacific: Who Brought the Dingo Ancestors, and Why?

2011-11-08T07:20:00.072-05:00

That Australian dingoes descended from domesticated dogs was considered a possibility by Hamilton Smith (1856) more than a century and a half ago, and the first plate is one of several paintings of dingoes that he published in his volumes on dogs.

Edward C. Ash (1927, p. 24) described the dingo as follows:

“Canis dingo is smaller than the wolf, and has somewhat long legs. It stands 24 inches at the shoulder. The tail is bushy. There is a greyish under-fur, but except in the black variety, the long hairs are generally yellow or white. In the whole family there seems to be a natural tendency for the feet and end of the tail to be white. The muzzle is very often black. It is found in the wooded districts throughout Australia, and was at one time extremely numerous. It runs unlike dogs, the head held up, and the ears erect and forward. In its habit it is far more like the fox than the wolf.”

Genome studies have in fact established that dingoes and New Guinea Singing Dogs are dogs, not wolves or some separate species of canid, and are descended from lines once domesticated though long isolated on large islands. Dingoes and Singing Dogs have formed relationships with the indigenous peoples of Australia and New Guinea, but their separation from other dog populations is much more recent than the arrival of the aboriginal peoples and these connections are unlikely to continue prior domestication behaviors.

So when did dingoes arrive in Australia? When did New Guinea Singing Dogs arrive in New Guinea? Dr. Peter Savolainen and a team addressed this question in a short paper published seven years ago, and he and another team—this one headed by Mattias Oskarsson—have now looked at the issue again. They have also looked at the genetic overlap of dingoes with other dogs in Southeast Asia and the western Pacific.

The problem is to explain not only when dogs arrived on the islands, but also who brought them there. Thus, what the DNA says must be placed in the context about what is known of the cultures that settled on the islands, or at least stopped at them. That the dogs arrived in canoes is generally assumed from the distances involved (Horridge 1995; for depictions of dogs on the canoes that met Captain Cook, see Luomala 1962), but canoe cultures have been present in the western Pacific for thousands of years and making connections between genetic studies of dingoes and cultural anthropological findings remains elusive.

Unfortunately, at least for those looking for firm answers concerning the relationships of dingoes to humans, the paper by Oskarsson et al. may actually increase the number of possibilities concerning who brought the dingoes and when.

Ancient Dogs of Southeast Asia and the Pacific

Australia and New Guinea were colonized by hunter gatherers about 50,000 years ago according to Mulvaney and Kamminga (1999), who themselves cite Jones (1979). A 2002 radiocarbon study of Australian bones by Gillespie concluded that the “oldest occupation horizons in four different regions reliably dated by defendable multi-method results are in the range 42-48,000 calendar years ago.”

Oskarsson et al. note that by 30,000 years ago, colonization “had reached as far into Near Oceania as the Bismarck Archipelago and the western-most Solomon Islands.” Islands further east were not colonized until the Neolithic, which reached western Polynesia about 3,000 years ago and eastern Polynesia only 1,400 years ago.

Neolithic culture developed in the Yangtze Valley about 8,500 years ago, reached Taiwan by 5,500 years ago and Southeast Asia between 4,500 and 3,500 years ago. A “cultural complex” known as Lapita appeared in Near Oceania about 3,500 years ago and spread across Polynesia, reaching New Zealand by 1250 AD. (See Greenhill et al. 2010, discussing Austronesian expansion at 5,200 years ago.)

The dog appears in the archeological record of Australia about 3,500 years ago, where a pre-Neolithic culture received “virtually no influence from external sources.” Oskarsson et al. note that how “the dingo, as the single item of possibly Neolithic origin, arrived to Australia is therefore an enigma.” They note that the spread of dogs in Southeast Asia “in parallel with the spread of Neolithic culture is clearly indicated.”

Dogs were probably present in Taiwan by 4,500 years ago, yet the genetic results of Oskarsson et al. do not find a connection between Taiwanese dogs and the dingoes of Australia and New Guinea Singing Dogs. Bones of domesticated dogs have been excavated in Thailand from 4,000 years ago. (Higham 1996, p. 59, noting that “by at least 2000 B.C., people with dogs domesticated from wolves were already living in the Khorat pleateau.”) Bellwood (2005) describes the distribution of dogs with Austronesian culture:

“All of this leads to the fairly astonishing observation that, between 2000 and 800 BC, assemblages with related forms of red-slipped and stamped or incised pottery, shell artifacts, stone adzes, and keeping of pigs and dogs (neither of these animals being native in most of the regions concerned) spread over an area extending almost 10,000 kilometers from the Philippines through Indonesia to the western islands of Polynesia in the central Pacific.”

Theories regarding the spread of Austronesian culture generally break down to arguments that Austronesians spread out from Taiwan in a relatively short time frame, or that more complex interactions between Southeast Asian cultures and the Pacific Islands occurred over more protracted periods that may have involved a significant infusion from Taiwan. Language studies have pointed to Taiwan, but human DNA studies have found only a minor contribution from Taiwan, pointing instead to “a largely Melanesian ancestry for the Polynesian people.” Regardless of which approach is more descriptive of cultural expansion, the dingo remains a curiosity.

The 2004 study by Savolainen et al. found that pre-European dogs from across Polynesia carried only two haplotypes, and that the Australian dingo population “was founded from a small number of dogs carrying a single mtDNA haplotype (A29).” (See also vonHoldt et al. noting lower diversity of Australian dingoes and New Guinea Singing Dogs.) Two New Guinea Singing Dogs “were shown to carry haplotypes A29 and A79.” A29 is found among East Asian dogs, but is rarely found west of the Himalayas. This earlier study had concluded that dingoes arrived in Australia from 5,000 years ago and perhaps as far back as 10,000 years ago, substantially before the archeological record can verify. (See also Klutsch and Savolainen 2011.)

Mainland Roots of Dingoes

The 2011 study concludes that South China was the probable source population for dingoes and Singing Dogs. Although genetic overlaps of haplotypes were found in mainland Southeast Asia and Indonesia, no overlap was found with samples from Taiwan and the Philippines. Unlike the previous study, the researchers in this one found the time of arrival of dingoes in Australia to be as recent as 4,640 years ago and as far back as 18,100 years ago. They find “a clear indication that Polynesian dogs as well as dingoes and NGSDs trace their ancestry back to South China through Mainland Southeast Asia and Indonesia. Thus, there is no indication that these dogs were introduced via Taiwan and the Philippines together with the expansion of the Neolithic culture and Austronesian languages, as suggested in some theories about Polynesian origins.” This has also been shown to be true of pigs.

This study thus appears to align itself with the school of thought that would argue that Austronesian languages and agriculture originate in Southeast Asia, without mediation through Taiwan. (See discussion in Piper et al. 2009.) If Polynesian peoples originated in Taiwan, the current research concludes that “their Neolithic cultural package was modified en route.” The researchers argue:

“We suggest that, with the evidence on the origins of Polynesian domestic dogs and pigs, a likely scenario for the origins of Polynesians is that farmers spread from Taiwan bringing the Neolithic culture (e.g. pottery) and Austronesian languages, but mixed extensively with local Melanesian populations, and picked up some cultural traits (e.g. the domesticated dog and pig, and the commensal Polynesian rat) … en route. Therefore, the cultural package of the Polynesians was probably formed from different sources, some parts deriving from Taiwan and others incorporated at the spread through Indonesia and Melanesia.”

The researchers speculate that the dingo may have been introduced by indigenous Australians trading with Neolithic groups, perhaps through New Guinea, or trading with pre-Neolithic groups. They argue that a common ancestry of New Guinea Singing Dogs and dingoes is suggested by a number of factors, including genetics and similarities in morphology and behavior. They may have been founded “from very few individuals from the same Indonesian population, but obtained different haplotypes because of founder bottlenecks.”

The map shows the general pattern of movement of the predecessors of dingoes from Southeast Asia as posited by Oskarsoon et. al. (Double click to enlarge.)

Reasons for Bringing Dogs in Canoes

Oskarsson et al. found that the founder haplotypes for ancient Polynesian dogs, though not that of dingoes, could also be found in southern China, mainland Southeast Asia, and Indonesia, and as with dingoes, were absent from Taiwan and the Philippines. (One Polynesian haplotype was found in 7% of New Guinea Singing Dogs.) This would seem to indicate a separate migration for the dogs that arrived in Polynesia than that of dingoes, but it may still be useful to consider why dogs would be brought on boats at all, as some of the same uses for the animals were likely to be present. (For a drawing distinguishing the morphology of dingoes from other Polynesian dogs, see Hemmer 2005, p. 33.)

Unfortunately, little can be said about what sort of relationship the predecessors of dingoes had with those who brought them to the islands. As to the current level of domestication, Carl Lumholz, in his book, Among Cannibals (English edition, 1902), states:

“On Herbert river there are rarely more than one or two dingoes in each tribe, and as a rule they are of pure blood. The natives find them as puppies in the hollow trunks of trees, and rear them with greater care than they bestow on their own children. The dingo is an important member of the family•; it sleeps in the huts and gets plenty to eat, not only of meat, but also of fruit Its master never strikes, but merely threatens it. He caresses it like a child, eats the fleas off it, and then kisses it on the snout.

"Though the dingo is treated so well it often runs away, especially in the pairing season, and at such times it never returns. Thus it never becomes perfectly domesticated, still is very useful to the natives, for it has a keen scent and traces every kind of game; it never barks, and hunts less wildly than our dogs, but very rapidly, frequently capturing the game on the run. Sometimes it refuses to go any farther, and its owner has then to carry It on his shoulders, a luxury of which it is very fond. The dingo will follow nobody else but its owner….”

The drawing of a dingo is from Lumholz's fascinating book.

Koler Matznick et al. (2003) reported that New Guinea Singing Dogs avoid human contact, but when captured as puppies they may be raised to assist in hunts. Some tribes also eat the dogs on occasion. Teeth may be used as ornaments. Gill (1873-4, p. 46) reports that dingoes must have been derived from New Guinea because they are found on the smaller islands in between, sometimes domesticated but also roaming in destructive packs.

Dogs of the Maoris

The Maori people of New Zealand, who arrived from eastern Polynesia, had many uses for their dogs. Blood taken from the ear of a dog and boiled was a remedy for spear wounds, taken internally or used as a lotion. Balls used in a game played by young women were ornamented with the white hair of a dog. Birds, fish, dogs, and rats were the principal animals in their diet. Dogs were cooked. Dog-skins were used in clothing. Tregear (1904, pp. 166-7) gives the following description:

“The Maori dog (Kuri ruarangi) has now entirely disappeared and it is highly improbable that even the very earliest of the white settlers ever saw the real animal, although doubtless some of its blood was running in the veins of the mongrels that roamed around the native villages. Those seen by Cook, Forster, and others, about the time New Zealand was discovered, were small dogs, something like degenerate sheep-dogs, with large heads, sharply-pierced ears, and a short, flowing tail. It was considered a valuable article of food, being bred for its edible qualities rather than for any other purpose, and as such even appreciated as eking out the slender resources of the explorers with Captain Cook. Crozet described native dogs as looking like domesticated foxes, indeed they would destroy poultry just as foxes do, and he relates that they were fed on fish, and would not be domesticated among white men, whom they would bite on occasion. The skin was highly valued as an article of attire, and a mat of dogskins was a precious possession. The white hair (awe) of the dog's tail was also used as an ornament for the weapons of a chief; the tail of the living animal being kept regularly shaved, and the hair put away for this purpose. The flesh of the dog was not allowed to be eaten by women, and not by men except under certain restrictions.”

Accounts of old natives said that the native dog did not bark, but howled a good deal. Owners prized and petted them and gave each a name. They were sometimes castrated, and were given birds and rats to eat. They were often trained to catch ground game, such as the ground-parrot (kakapo), rails (weka), and apteryx (kiwi). Training the dog was explained by Tregear as follows:

“This was done by the master squatting down, and holding his dog, at the same time giving a cry in imitation of that of the bird, who hearing the cry would come towards the hunter. The little dog was then let go and would catch the bird and hold it or bring it to his master. The dog might get lost through its stupidity, but never ran wild.”

Dogs were taken in canoes to hunt ducks and sent overboard to catch the ducks when the canoes had gotten as close as possible. Kiwi hunting is described as follows:

“The kiwi goes along looking for worms or rather listening for the rustle of the earth-worm underground. When the bird hears the worm creeping below the soil the long beak is prodded down and finds its prey. The kiwi hunter fastened little pieces (patete) of wood to his dogs' neck, so that they would rattle or rustle, and the kiwi would stop to listen, thinking that it heard the worms creeping. Then the dogs would rush in, and the men came forward with torches which they had hitherto concealed. The bird was astounded at the sudden dazzling light, it being a nocturnal bird and not used to the light, so that it was easily killed.”

Dogs even advised when to hunt kiwi: “If a dog twitched or barked in his sleep, you would go hunting with him soon, and he would catch plenty of kiwi (apteryx) for you.”

As mentioned earlier, women could not eat dog flesh, but Tregear reports other restrictions:

“The flesh of the dog was held to be a tapu food, only to be indulged in by certain persons and under certain restrictions. A dog was always killed at the great ceremonies connected with the children of chiefs and on other important and formal occasions, but the priest ate its flesh. A dog was also killed for the tattooer, when he was operating on a chief; but anciently they were kept for sacrifice.”

Theft of a dog could lead to bloodshed. Dogs had a position in the spiritual life of the Maori:

“The spirits of dogs were supposed, like those of men, to pass to the World of Shadows (Te Reinga) but they travelled by a different path than that taken by the souls of human beings. If a dog barked in a certain way at a man it was supposed to denote the death of the person barked at; the god of evil and death (Te Nganahau) inspired the dog to give the warning. Dogs frequently became goblins (taniwha) and sometimes the guardian spirits of certain places. The sacred dog of Maahu lived under the waters of a lake named Te Rotonuiaha, and was a kind of banshee, its bark proceeding from under the water being a warning of the approaching death of a chief.”

The spirits of dogs could pass into other things on death:

“A chief of high descent and great powers had a dog that was killed by a falling tree, and thereon the chief commanded the spirit of the dog to pass into a large tree growing near, and in that tree the spirit dwelt for ages and spoke (in the dog language) to travellers who dared to address it.”

Calling someone a dog was an insult in Maori society:

“The tutelary deity of dogs was Irawaru or Owa, the husband of the sister of Maui the hero, but Irawaru offended Maui who changed him into a dog and then insulted his sister by telling her to call aloud for her husband with the cry 'Moi moi!' the usual call to a dog, and which is even to-day an insult if used to a man.”

The Maoris believed that their ancestors brought dogs on canoes:

“Kupe, one of the legendary discoverers of these islands brought his dogs with him, and not only do the Hokianga natives show some curious markings in stone as being footprints of one of these dogs, but in another place they exhibit a stone into which another of the animals was transformed.”

The plate of the canoe shows a war party that met captain Cook. A detail from the plate shows a dog up close.

Dogs of the Native Hawaiians

Bryan (1915) describes the arrival of dogs on the Hawaiian Islands:

“Just as the Polynesian people carried useful plants with them on their wanderings, they also brought with them in their canoes these two highly-prized and useful domestic animals known to them in their more ancient home…. The Hawaiian dog was fed largely on poi, and was much relished as food in old-time Hawaii. Like the hogs, they were classed according to their color, there being several well-recognized color types.”

As to eating the dog, he states:

“The poi-dog, when carefully fed and fattened on poi, was regarded as even more delicious in flavor than pork. Dogs always formed an important dish at the native feasts and on such occasions large numbers of them would be baked in earth ovens.” Dogs were wrapped in banana leaves and placed on stones that had been heated by wood in a hole. The fat of the pig and dog was used as an illuminating oil.

Hamilton Smith (1840) contains a letter describing the Poe Dog of the Hawaiian Islands (once known as the Sandwich Islands) as follows:

“At the Sandwich group, where the inhabitants have been more remarkable for the use of this animal as food, and where that custom is yet pertinaciously retained (owing probably to the scarcity of swine and spontaneous fruits of the earth), the pure breed of the Poe dog has been better protected; and although becoming yearly more scarce, examples of it are yet to be met with in all the islands, but principally as a delicacy for the use of the chiefs. As late as October 1835, I noticed, in the populous and well civilized town of Honoruru at Oahu, a skinned dog suspended at the door of a house of entertainment for natives, to denote what sumptuous fare might be obtained within.”

Dogs were paid as taxes and tribute. Dogs teeth were worn in bracelets and anklets.

Conclusion

Whereas with many cultures we cannot know if camp following was something that was actively sought by humans, in the islands of the Pacific we can be sure that devoting canoe space to a dog or two meant that they had real value to the ancient travelers. Unfortunately, two very large populations of dogs in Australia and New Guinea have so long been isolated from the cultures that carried them between islands, and the time frame of settlement is so broad, that it is uncertain who brought them or why. They are sufficiently different from the other dogs of the Austronesian expansion that this expansion must have occurred in several distinct periods and geographical areas if dingoes were part of it.

Oskarsson et al., by studying dogs, have made a significant contribution to the study of the settlement and cultures of the western Pacific. It is to be hoped that anthropologists will be able to integrate these results into further research.

The last plate is another of Hamilton Smith's dingoes.

Sources:
1. Ash, Edward C. (1927). Dogs: Their History and Development, vol. 1. Ernest Benn Ltd., London.
2. Bellwood, Peter (2005). The First Farmers: The Origins of Agricultural Societies. Blackwell Publishing, Oxford.
3. Bryan, William A. (1915). Natural History of Hawaii. The Hawaiian Gazette Co., Honolulu.
4. Gill, W. Wyatt (1873-4). Three Visits to New Guinea. Proceedings of the Royal Society of London, 18(1), 31-49.
5. Gillespie, Richard (2002). Dating the First Australians. Radiocarbon, 44(2), 455-72.
6. Greenhill, Simon J., Drummond, Alexei J., and Gray, Russell D. (2010). How Accurate and Robust Are the Phylogenetic Estimates of Austronesian Language Relationships. Plos One.
7. Hamilton Smith, C. (1856). Dogs, vol. I. Lizars, Edinburgh.
8. Hemmer, Helmut (2005). Domestication: The Decline of Environmental Appreciation. Cambridge University Press.
9. Higham, Charles (1991). The Archaeology of Mainland Southeast Asia. Cambridge University Press.
10. Horridge, Adrian (1995). The Austronesian Conquest of the Sea—Upwind. In Bellwood, P., Fox, James J., and Tryon, D. (eds.) The Austronesians: Historical and Comparative Perspectives. Australian National University, Canberra. (“With the ability to carry fire, family, dogs, chickens, tuberous roots, growing shoots and seeds by sea, the Austronesians eventually occupied the Pacific Islands, travelling into Melanesia about 3500 years ago and onwards into Polynesia.”)
11. Jones, Rhys (1979). The Fifth Continent: Problems Concerning the Human Colonization of Australia. Annual Review of Anthropology, 8, 445-66.
12. Klutsch, Cornelya F.C., and Savolainen, Peter (2011). Geographical Origin of the Domestic Dog. Encyclopedia of Life Sciences. John Wiley & Sons, New York.
13. Koler-Matznick, Janice, Brisbin Jr., I. Lehr, Feinstein, Mark, and Bulmer, Susan (2003). An Updated Description of the New Guinea Singing Dog (Canis hallstromi, Troughton 1957). Journal of the Zoological Society of London, 261, 109-118.
14. Koler-Matznick, Janice, and Stinner, Mindy (2011). First Report of Captive New Guinea Dingo (Canis dingo hallstromi) Den-Digging and Parental Behavior. Zoo Biology, 30(4), 445-50.
15. Lumholz, Carl (1902). Among Cannibals: An Account of Four Years' Travels in Australia and of Camp Life with the Aboriginees of Queensland. Charles Scribner's Sons, New York.
16. Luomala, Katharine (1962). Additional Eighteenth-Century Sketches of the Polynesian Native Dog, Including the Maori. Pacific Science, 16 (April).
17. Mulvaney, Derek John, and Kamminga, Johan (1999). Prehistory of Australia. Smithsonian Institution Press, Washington, D.C.
18. Oskarsson, Mattias C.R., Klutsch, Cornelya F.C., Boonyapracob, Ukadej, Wilton, Alan, Tanabe, Yuichi, and Savolainen, Peter (2011). Mitochondrial DNA Data Indicate an Introduction through Mainland Southeast Asia for Australian Dingoes and Polynesian Domestic Dogs. Proceedings of the Royal Society B (doi:10.1098/rspb.2011.1395).
19. Piper, Philip J., Hung, Hsiao-chun, Campos, Fredeliz Z., Bellwood, Peter, and Santiago, Rey (2009). A 4000 Year-Old Introduction of Domestic Pigs into the Philippine Archipelago: Implications for Understanding Routes of Human Migration through Island Southeast Asia and Wallacea. Antiquity (September 1, 2009).
20. Savolainen, P., Leitner, T. Wilton, A.N. Matisoo-Smith, E., and Lundeberg, J. (2004). A Detailed Picture of the Origin of the Australian Dingo, Obtained from the Study of Mitochondrial DNA. Proceedings of the National Academy of Sciences, 101(33), 12387-12390.
21. Tregear, Edward (1904). The Maori Race. A.D. Willis, London.
22. vonHoldt, Bridgett M., Pollinger, John P., Lohmueller, Kirk E., et al. (2010). Genome-wide SNP and Haplotype Analyses Reveal a Rich History Underying Dog Domestication, Nature, vol. 464(8).

Thanks to Richard Hawkins and Brian Duggan for suggestions.

Service Dogs and the Subtle Sociology of Prejudice in the Twenty-First Century

2011-11-03T06:58:00.055-04:00

At its best, Mad Men is a study of corporate sociology--better, anthropology--of the 1960s. Fans of the series have their favorite episodes. Mine is the tractor episode (Season 3, episode 6), in which the new Chief Operating Officer of Sterling Cooper nearly loses his life when a secretary, driving a tractor around the office during a raucous celebration—the John Deere account has just been landed—runs over the COO’s foot, cutting it off. One of the first assessments of upper management, before the bleeding is even stopped, is that the COO will have to be replaced. He cannot play golf with only one foot. In pre-ADA America, the COO could not even think of suing based on dismissal or demotion for his sudden disability. He would have to accept that the inability to play golf would preclude his being in the inner circle of an advertising agency of that era.

We have come a long way from a time when even the object of prejudice could accept such discrimination without complaint. Prejudice has not disappeared, but those who do not want to serve or work with the disabled generally disguise their reasons much better than was the case thirty or twenty or even ten years ago. Things have gotten so subtle that it may be difficult to establish that prejudice was involved at all, and indeed it may not be involved because bad things sometimes happen to good people for nondiscriminatory reasons.

Two decisions issued in October 2011 provide something of a snapshot of the present state of legal disputes regarding exclusion of service animals from retail businesses that serve food.

Fast Food Franchise

In April 2010, Alexander Johnson attempted to enter a Burger King franchise owned by B5596, LLC, but a sales clerk prevented Johnson from bringing his hearing dog inside the restaurant. A friend had to buy food and bring it outside to Johnson.

Johnson sued for disability discrimination under California’s anti-discrimination law, known as the Unruh Act, seeking damages of $4,000, along with attorney’s fees and costs. The trial court found the franchise in violation of a separate law, usually called the Disabled Persons Act, which provides for statutory damages of $1,000. Johnson appealed, arguing that he was entitled to the statutory damages of $4,000 allowed under the Unruh Act.

An appellate court in California held, in an opinion that was not officially published, that Johnson was only entitled to damages of $1,000. The appellate court explained that the Unruh Act was amended in 1992 to provide that a “violation of the right of any individual under the Americans with Disabilities Act of 1990” constitutes a violation of the Unruh Act. The Americans with Disabilities Act restricts private rights of action to injunctive relief, but the state law allows recovery of damages for the kind of discrimination contemplated by the ADA.

The court concluded, however, that the specific mention of service dogs in California’s Disabled Persons Act meant that this was where the plaintiff had to look for compensation for the defendant’s discrimination. The court noted that a provision under the Disabled Persons Act provides that a defendant, such as the franchise here, could not be held liable under both that Act and the Unruh Act. The court also affirmed the trial court’s finding that Johnson could not choose to sue under the Act that would give him the larger award. The more specific provision controlled over the more general.

The court awarded costs on the appeal to the respondent, the franchise, though apparently not attorney’s fees. Johnson v. B5596, LLC, 2011 WL 5086234 (Cal. Ct. App. 2011)

Oregon Dairy Farm and Store

On December 1, 2009, Rachel Brodle entered a Dari-Mart Store in Eugene, Oregon, with her service dogs. The store clerk asked her what kind of service dogs they were. Plaintiff, according to the defense, became “distressed and started yelling.” Brodle left the store and returned with a friend, Lorri Cochrane. Brodle asserted her right to enter the Dari-Mart with her service dogs. Again according to the defense, Brodle was “incredibly rude and invasive” towards another employee of the store.

The store manager instructed all her employees that if Brodle returned again, she should be directed to speak to Alexander before being allowed to shop. The manager also contacted the Deri-Mart’s human resources department and requested that the surveillance video of the events be reviewed.

Brodle returned five days later with her dogs. A clerk informed her she had to speak to the manager before she would be allowed to shop. Brodle refused and left the store, saying she would contact her lawyer.

Later on December 6, Cochrane also returned to the store and expressed her displeasure at what she perceived to be the store’s mistreatment of Brodle. Cochrane had poured herself a soda and left without paying for it. Cochrane also mentioned contacting an attorney on Brodle’s behalf.

On December 7, the store manager informed Dari-Mart’s Human Resources Manager that she believed Brodle was “looking to sue us.” The HR Manager asked the company’s Safety Director to review the video surveillance of December 6. The Safety Director took out snapshots of Cochrane taking a soda without paying for it, apparently thinking there should be a shoplifting prosecution. The video of December 6 was automatically erased about 30 days after the incident.

Brodle brought suit, then petitioned for an order specifying that she was refused access to the store because she was accompanied by service dogs, as well as an order imposing an adverse-inference instruction that would instruct the jury that it could infer that spoliated video surveillance would have been unfavorable to the store and its employees.

Federal courts may issue sanctions against a party for destroying evidence, but a court considering such sanctions must take into account a number of factors before imposing them. The federal district court for the District of Oregon held that the failure to preserve the video was not the result of willfulness, bad faith, or interference with the rightful decision of the case in that the store had admitted that Brodle was asked to leave on December 6.

The court also declined to exclude testimony of the store employees regarding what happened on December 6 because Brodle “failed to show that she is unduly prejudiced by the destruction of the December 6 video and any testimony by defendants and their employees regarding the events of that day.” Thus, the store employees could testify.

As to the adverse inference instruction that Brodle sought for the jury, the court concluded that Brodle had “failed to show that the video was destroyed with a culpable state of mind.” The request for such an instruction was also denied.

Dari-Mart moved for summary judgment, arguing that Brodle had failed to establish a basis for liability. This motion was granted, ending the case, absent possible reconsideration on appeal.

As with a recent blog regarding access of a person with a service dog to a courthouse , the statement of facts given in the court’s opinion does not tell us what really happened. Clearly the court was inclined to accept that Brodle reacted badly to a request for information from a store employee. The store and its employees have a right to verify that a dog—in this case dogs—is a service animal. There are well-known limits on what may be asked and what may not be asked. Brodle’s complaint stated that she suffered from Addison’s Disease (primary adrenocortical insufficiency). The store could not ask about Brodle’s condition, and apparently did not do so. The store could ask about what functions the service dog performed, which is what apparently was asked, though the opinion never states what functions the dogs perform.

Merely knowing what was asked and what was not asked does not always describe what it was like to be in the store when the events that became the subject of this litigation took place. The court had to make a decision, and did so. Although the facts, as presented in the opinion, portray Brodle as overly sensitive to the store employee’s inquiries, we cannot be sure that some level of prejudice might have been involved.

The store made its case. Brodle did not. Judges are not agents of individuals with disabilities, nor are they agents of businesses. They listen to stories and attempt to understand what happened. As I said in another blog several years ago, enforcing one’s rights sometimes involves thinking strategically, not aggressively. That does not seem to have been done here. Brodle v. Lochmead Farms, Inc., 2011 WL 4913657 (D.Or. 2011)

What Was Not Said by the Courts

When I wrote Service and Therapy Dogs in American Society, I was surprised at how many national and multinational corporations had failed to assure that employees be aware of the disability rights of customers, including customers using service animals. It seemed to me that they should be learning from each other’s mistakes, but this has often not been the case. The lucky ones are those that find a way to settle before an incident becomes public.

Although Burger King is a franchise system, I have to believe that Burger King corporate headquarters is anxious to avoid the bad publicity attendant on a franchise employee’s refusal to admit a customer with a service animal. Was this an employee more interested in someone sitting next to him at the disability seminar than he was in the speaker? The franchise may have had to pay a small amount this time, but the next time an employee crosses the line with a customer using a service animal, resolving the issue may not come so cheap. Burger King corporate headquarters would be well advised to send a memo to franchisees warning them about the risks of failing to educate employees on the need to allow people with service animals into the restaurants.

Dari-Mart should not become complacent about the fact that it got a service dog user’s case dismissed. Why did a security official allow a videotape to be erased? Why did that official think the only thing the tape was good for was in making a shoplifting case against someone who was trying to help an individual with a disability? Other employees seem to have made it clear that they wanted the video footage reviewed to establish that their response to the woman with the service dog was not discriminatory or threatening. The security officer could not think beyond the boundary of his responsibility of protecting the store from theft. Dari-Mart should be concerned that another court, or the same court with a few variations in facts, might have favored the plaintiff in such a situation. It might even be wise to shift to a technology that saves security footage indefinitely. While a month may be adequate for most security and police purposes, an incident involving discrimination would quite likely not come to the store's attention in such a short time frame.

Conclusion

A corporation with an employee that doesn’t know about the rights of persons with disabilities, including the rights of persons using service dogs, has a problem employee. An employee who doesn’t understand that video surveillance can be used for more than preventing shoplifting may also be a problem employee. The Dari-Mart case shows that employee education should be designed to deal with the many collateral issues that may arise in a potential discrimination situation.

Corporate counsel reviewing incidents that might lead to accusations of discrimination should not rest on the easy victories where company employees were more in the right than in the wrong. These victories may come from incidents that contain the germs of more serious issues, ones that will not be easily won, or might only be won at a tremendous public relations cost.

People with disabilities, including users of service animals, are more aware of their rights than ever. An employee who loses his foot at an office party would not in the twenty-first century accept a demotion because of a sudden limitation to his golf game. Situations have become more subtle, making proof of discrimination harder to establish. All in all this is probably progress of the sort Oliver Wendell Holmes wrote about and which has for decades decorated a wall of Boalt Hall at Berkeley.

“Putative” Experts Don’t Impress Federal Judge, But Were Canine Issues Fairly Resolved by Summary Judgment?

2011-10-27T12:32:00.109-04:00

Sometime in late 1980 I was representing a man found not guilty by reason of insanity for hacking at several people with a machete in a shopping mall. Each side had retained a psychiatrist for expert testimony on the issue of the level of security appropriate for the facility in which he would be placed. After becoming more and more annoyed with the direction of the prosecutor’s interrogation of his own expert, despite overruling most of my objections, the judge called both counsel into chambers.

Standing before the judge's desk, we both knew that at least one of us, perhaps both, was about to take some heat. This was obvious because the judge kept himself, and us, standing.

“Money talks, bullshit walks,” he said, looking first at me, then at my opponent.

For anyone not politically aware in 1980, the expression was coined by Angelo Erichetti, once Mayor of Camden, New Jersey, during his prosecution in the ABSCAM (a contraction of “Abdul scam”) case where FBI agents posed as employees of a non-existent sheikh and got various government officials, including Erichetti, to take money in exchange for favors. Erichetti was sentenced to eight years for his involvement.

We were in a courthouse in New Jersey, where Erichetti’s failings still created raw emotions in many politicians who felt his taint had spread to them, but neither the prosecutor nor I thought we were going to have a conversation about Angelo Erichetti or his colorful language.

“At least Ensminger’s expert doesn’t sound like he memorized his brief. Can your psychiatrist think for himself?”

The prosecutor cleared his throat. “Well, my brief probably reflects his thinking more than the other way around.”

“Even the legal terms? He doesn’t know what they mean, but he’s putting them in every chance he gets. If I needed legal advice, I’d ask one of you. On second thought, I wouldn’t.”

“Well, I had to describe the case to him,” the prosecutor continued searching for a way to leave the room. “I suppose I used my own terminology, which he picked up.”

The judge made a derisive snort, but he had cooled slightly. He looked at me again.

“Part of your job, if you’re representing your client, is to sell the expert to me, or the jury, but it’s just me here, unfortunately for both of you. Tell your guy to think for himself or I’m throwing him out. I’ll be out after I call my wife, which will probably not put me in a good mood. Make me happy, ---------.”

“Yes, your honor,” my opponent said.

The judge looked at me.

“Yes, your honor,” I chimed. I wasn’t sure if the same warning applied to me, since my witness had left the stand the day before and there had been no threat to exclude his testimony.

I lost the case, by which I mean that I was unsuccessful in moving my client from a maximum security ward in a mental hospital to a halfway house. Despite the interaction I’ve just described, the judge’s order made my expert sound like the weaker witness. Perhaps he was, in the judge’s opinion, but I thought then, and I think now, that the judge needed a way to reject my expert and accept the prosecutor’s. It meant he was not making the decision on his own and he didn't want to be responsible if my client came across another machete.

A recent case concerning a dog’s alert in Union Station, Chicago, included a scathing evaluation by the court of two experts. Counsel for individuals suspected of drug activities had not sold them to Judge Elaine E. Bucklo of the federal district court for Northern District of Illionois.

Incident at Union Station, Chicago

DEA Task Force Agent Officer Romano, searching the passenger manifest of a train scheduled to depart Chicago’s Union Station for Seattle on December 6, 2002, noticed that a passenger, Vincent Fallon, had purchased a one-way, first class ticket with cash less than 72 hours before departure, which fit a drug-courier profile.

Romano and another DEA agent, Officer Terry, approached Fallon’s compartment, identified themselves, said they were conducting a routine check, and asked if they could ask a few questions. Fallon complied. The officers asked if Fallon was carrying drugs, weapons, or large sums of money, to which he replied he was not. Romano noticed Fallon was sweating.

Fallon said that the backpack and briefcase in the compartment were his, and consented to a search of the backpack. Romano then reached into Fallon’s compartment and picked up the briefcase. “Finding it locked, he asked Mr. Fallon about its contents.” Fallon said he did not have a key to the briefcase and that he opened with a knife, but that it only contained personal effects. Thus, Romano attempted to open the briefcase very early in the encounter before probable cause could have been established.

On further questioning, Fallon said the briefcase contained about $50,000 in cash, with which he said he planned to purchase a house in Seattle. Romano told Fallon that the briefcase would be seized and Fallon himself detained and asked him to come back into the station where he was frisked, fingerprinted, and photographed. The interaction had developed into an investigatory stop. In a suppression hearing, it was found that a Miranda warning had not been given to Fallon 361 F.Supp.2d 757) (N.D. Ill. 2005).

It was later learned that neither the briefcase nor the money belonged to Fallon but rather to Nicolas Marrocco, who had given the briefcase to Fallon to deposit in a safe deposit box in Seattle. Marrocco, when later challenged to explain the source of the cash, was largely unable to do so. (Another stage of the case determined that Marrocco owned the funds, but the connection of the funds to drug trafficking had not then been established. 494 F.Supp.2d 960 (N.D. Ill 2007).)

Romano requested that a drug detection dog be brought to the station. Before the dog arrived, Romano used a knife to open the briefcase and saw that it contained bundles of cash. He closed it without removing its contents. What was the point of opening the briefcase at this stage, given that the dog would soon arrive and an alert would provide a sufficient reason for opening the case? The effect of opening the case could have been to move air inside the case to the outside, making it easier for the dog to detect the odor of drugs, though there is no evidence that this was why Romano did it. The issue should have been of concern to counsel for the claimants.

Chicago Police Canine Officer Richard King arrived at the station. “After a brief discussion with Officer Romano, during which Officer King observed the briefcase containing the money, Officer King left to retrieve his dog, ‘Deny.’” Viewing the potential target by the handler should not have been permitted. This informed King that the dog would be sniffing for currency and gave him a visual clue about the size and shape of the object that Deny would be given the chance to alert to in the next stage of the investigation. Knowing the size of the case gave King some idea of what sort of space would be necessary to hide the case, and where it could not be hidden, which raises the issue of cueing as to the subsequent sniff.

Romano hid the briefcase in the “roll call room,” which contained a counter top beneath which were storage cabinets with hinged doors. The briefcase was placed in one of the cabinets. Officer King and Deny then entered the room and King commanded Deny to search for drugs. Where was Romano at this point? One of the experts later suggested he was within sight of the dog. If so, third-party cueing is possible. Romano could have avoided this problem by having someone else hide the briefcase. Arguably, the dog should have been given a zero trial, as would be done in a scent lineup, by entering the room first before the briefcase was hidden in it.

It is not clear why Romano hid the briefcase. Some sniffs of packages and luggage have involved putting the item in a room or row of similar packages, including packages containing currency, but here the idea may have been to try to avoid cueing since King had seen the briefcase and knew something about its contents.

“Whether Deny went straight to the cabinet containing the briefcase or, instead, sniffed about the roll call room before proceeding to the cabinet is in dispute. But the evidence is uncontroverted that Deny ‘alerted’ to the cabinet door by scratching and pulling at it, then, after opening the cabinet door, alerted to the briefcase itself by scratching and biting it.”

Deny did not alert anywhere else in the roll call room. Counsel for the claimants argued that Deny did not go straight to the cabinet where he alerted, but the judge correctly noted that this was immaterial as a systematic search of the room before alerting did not indicate any failure on the canine team’s part. Ironically, counsel for the claimants might have made a stronger argument by suggesting that Deny went straight to the case because he was matching the odor of Romano, whom he had been near, to Romano’s scent on the briefcase, which Romano had tried to open and carried for a brief period. Thus, it could have been argued that the investigation had turned into a sort of tracking test or article search.

In challenging the canine evidence, the claimants seeking to avoid forfeiture of the cash argued that there were three genuine factual disputes regarding that evidence:

(1) Whether Deny was properly trained and certified to discriminate between innocently contaminated currency and currency that has been used in connection with a narcotics transaction.
(2) Whether Deny alerted to the odor of methyl benzoate or instead to the odor of circulated currency innocently contaminated with cocaine.
(3) Whether the methodology of the “sniff-search” in this case adequately protected against cross-contamination or the possibility of a false positive alert.

The court, in denying a previous motion for summary judgment by the government, had noted that the government admitted in its reply supporting that motion that "the dog sniff evidence is the sine qua non of its case...." The phrase "sine qua non" seems to suggest that the canine evidence here is more than corroborative, being almost the government's entire case. The court, while denying the government's motion at the time, did so with leave to file a renewed motion supported by expert evidence regarding the sniff, as well as challenging the claimants' expert evidence, which consisted of two canine experts. The court seemed to be showing the way that the government could win on motion, without having the canine evidence examined in a full trial, which is what has now happened.

Training and Certification

The court found it “undisputed” that the canine team had received 500 hours of training, including narcotics detection for marijuana, cocaine, heroin, ecstasy, and methamphetamine, and had been certified in 1998 and remained so until he retired in 2007. In pre-certification training, the pair conducted 116 sniff searches in which he alerted to the presence of drugs or money. In training sessions where currency was sniffed, Deny alerted to tainted currency but not untainted, circulated currency.

The court dismissed a challenge to the government’s evidence as follows:

“Claimants purport to dispute this evidence based on their expert, Mr. Kroyer's, own interpretation of the 'dog log.' … But Mr. Kroyer has no personal knowledge of that document, and his interpretation of it is insufficient to controvert the sworn testimony of Officer King, who created the log and participated in the events it records, and who affirmatively disputes Mr. Kroyer's interpretation. The evidence is thus undisputed that on three separate occasions during his training, Deny alerted to currency contaminated with narcotics but did not alert to untainted currency.”

The wording is a little curious in reaching the conclusion that the evidence was undisputed because the expert had no personal knowledge. A log book should be sufficiently understandable that "personal knowledge" would not be necessary to understand it. In any case, it would seem that there was in fact a dispute. It should be perhaps be noted here that where a dog fails to alert to currency, the currency will often not be tested for cocaine residue, meaning that a false negative could easily go undetected.

Field Records

The court states that after certification, Deny “performed approximately 309 sniff searches (in training and in the field) and gave 259 positive alerts. In fifty searches, Deny did not alert. Of Deny’s 259 positive, post-certification alerts, ninety-three were in training exercises. Eighty-two of these revealed hidden drugs, and ten revealed drug-scented currency.”

The numbers should have been explored more by counsel for the claimants. The dog had a nine-year working life, from 1998 to 2007. The average training time per month is probably around 16 hours (four hours/week), or about 192 hours per year, and 1,728 hours over a career of nine years. It would seem that with this much training (more or less), Deny should have only had the opportunity to alert to actual drug odor 93 times, about once a month. This is a very low number. Counsel for the claimants should have explored what amount of narcotics training was really going on.

The court then refers to the team’s statistics in the field:

“Deny also made 166 positive, post-certification alerts in the field, forty-five of which revealed narcotics. There is a dispute over whether Deny made 113 or 115 positive alerts to currency in the field, but this dispute is immaterial because even if Deny alerted 115 times to currency (as claimants contend), and even if every single one of these alerts was a false alert, it is nevertheless undisputed that drugs or currency known to be tainted with the scent of drugs was found after 137 of his 259 positive, post-certification alerts (ninety-two times in training and forty-five times in the field), making his reliability no less than 52.8%.”

The court’s approach was to look at all post-certification alerts, whether training or field alerts, and calculate the dog’s accuracy based on the finding of drugs and on alerts to currency known to be drug-tainted. If, instead, one were to look solely at field alerts which revealed narcotics, one would have 166 alerts resulting in the discovery of drugs in 45 instances. This would be an accuracy rating of 27.1%, excluding possible residual odor alerts. Instead, finding an accuracy rate of 52.8% (or 67.5% if pre-certification results are included), the court concluded that this was sufficient to meet the standard the Seventh Circuit set in U.S. v. Limares, 269 F.3d 704 (7th Cir. 2001).

Experts for the Claimants

It was mentioned above that the court rather dismissed Kroyer, an expert for the claimants, but it gets much worse for him:

“Furthermore, Deny's reliability is not materially challenged by claimants' putative experts. David Kroyer, a dog trainer whose esoteric credentials are summarily, and rather unhelpfully, described in the first paragraph of his short affidavit, … first suggests that Deny's certification by the Chicago Police Department is deficient, opining that it is 'normal' for dogs to be certified by outside agencies. Mr. Kroyer further opines that Deny's certification, or his handler's affidavit, should reflect which odors he is certified to detect, and the standards he is required to meet for certification…. Mr. Kroyer then opines that Deny's training was deficient. None of these opinions materially controverts the evidence of Deny's reliability, however, which is based not on his paper credentials, but on his actual performance in training and in the field…. Moreover, Mr. Kroyer's opinion that Deny was inadequately trained, is based on his own interpretation of the 'dog log,' a document of which, as noted above, Mr. Kroyer has no personal knowledge. In short, Mr. Kroyer's opinions relating to Deny's certification and training do not controvert the government's evidence of Deny's reliability.”

Putative experts? There is more “opining” here than I have ever seen in a single paragraph. The court reproduces Kroyer’s “unhelpfully described” “esoteric credentials” from his affidavit:

“Owner, President, Certified Training and Behavior Consultant, Master Trainer and Training Director of Canine Headquarters Police K9 division. Eleven years training experience. Placed green and finished K9 detection dogs for Law Enforcement, Military, and Homeland Security/Border Patrol. Trained and placed handlers for Law Enforcement, and Military. One Hundred percent (100%) passing rate under NNDDA certification. Conducted seminars and workshops nationally and internationally on detection dog training. Assisted in developing a program for mine detection rats at Bogota University, Columbia (sic).”

Certainly Kroyer needs a marketing consultant, and he should at least spell out National Narcotic Detector Dog Association, but I do not recall ever seeing such contempt for an expert.

Dr. Lawrence J. Myers of Auburn did not fare much better. The court quotes from Myers’ affidavit, which states that there “are no records of replicated, controlled, randomized, double-blind tests performed to determine reliability.” Moving on, the court then states:

“And Dr. Myers' opinion suffers from additional flaws that do not require expert rebuttal to perceive. For example, Dr. Myers suggests that Deny's ability to distinguish contaminated currency from general circulation currency—despite having been established on three separate occasions in Deny's pre-and post-certification training exercises—should be disregarded because ‘[t]here is no evidence of numerous non-alerts by the canine, Deny, to circulated U .S. currency.’ This suggests, of course, that some number of non-alerts to circulated currency would be enough to establish Deny's ability to distinguish between tainted and untainted currency. But if three times is not sufficiently ‘numerous,’ how many times would be? Ten? Fifty? One hundred? The Myers affidavit verily begs the question, but then proceeds to its conclusion that Deny's alert is unreliable without even the hint of a response. For the same reason, Dr. Myers' opinion regarding the need to ‘proof’ a detector dog off circulated currency—even were it not in conflict with the court's holding in Limares (reliability based on ‘how dogs perform in practice,’ not ‘how they were trained and “proofed off” currency’), … and based largely on the discredited ‘currency contamination theory’ (more on this below)—rings hollow on this record.”

The court is correct that an alert should not be rejected merely because there were not enough opportunities in a dog’s history to make false alerts, when there is no indication that false alerts would necessarily be made. Myers is correct, however, that a narcotics detection dog’s training should regularly involve proofing, such as using currency line-ups in which only some of the stations are tainted.

Myers then raises the possibility of cueing, which the court also dismisses:

“Nor does Dr. Myers' discussion of scientific studies involving ‘the potential for cuing’ by a detector dog's handler or other individuals raise a genuine dispute over the reliability of Deny's alert in this case. Whatever the validity of such studies, the only bases Dr. Myers cites for his opinion that this particular alert may have been a response to some ‘cue,’ rather than to Deny's detection of the scent of narcotics, are that ‘the handler knew and saw the object of the search,’ and that the officer who had hidden the briefcase was ‘visible in the doorway of the room in which it had been placed.’ There is no dispute, however, that Deny's handler, Officer King, did not know where the briefcase was hidden, and thus could not have ‘cued’ Deny to alert to the cabinet door. And, without any explanation of how Officer Romano might have ‘cued’ Deny from the next room (much less any evidence that the dog actually saw the officer), the mere possibility that Officer Romano may have been visible through the doorway is far too speculative a basis for concluding that Deny's alert was the result of the officer's improper influence, rather than the dog's detection of narcotics.”

Myers was right to raise the issue of cueing, as we did previously in our analysis. If King was visible in the doorway, the possibility of third-party cueing is high, and King already knew the size of the object that had been hidden in the room. As the authors have discussed in a paper on cueing posted on the website of the Animal Legal and Historical Information Center of Michigan State University, cueing by no means only comes from the handler’s knowledge. Anyone visible to the dog can make a motion that can cue a dog.

The court summarizes the opinions of the experts of the claimants by saying that the effort to challenge Deny's training and certification "simply do not controvert the government's proffered evidence of Deny's reliability." It must be remembered that this conclusion is not one made after trial evidence, but rather on a motion that, in this case, will obviate the need for a trial. Although the effort of these experts to "controvert the proffered evidence" may not have been well stated, controverting there surely was.

Innocently Contaminated Currency?

The court also rejected an innocently contaminated currency argument, relying on U.S. v. $30,670 (7th Cir. 2005). a case discussed in a prior blog which the district court said “puts to rest any argument that dog sniffs are universally unreliable based on the ‘currency contamination’ theory.”

Finally, counsel for the claimants argued that cross-contamination might be involved, that is that “Deny’s alert may have accurately detected the odor of narcotics, but that the briefcase and currency seized from Mr. Fallon became contaminated with that odor only after it was seized.” The court rejected this argument in the absence of supporting evidence. It is not that the possibility of contamination did not exist, but it must be acknowledged that the claimants had the burden of producing evidence that there might be some such contamination. It is not clear whether claimants were suggesting some fraud on the part of the police or considered that the area where the briefcase was hidden held cocaine residue or that somehow residue was accidentally put on the briefcase. Perhaps they intended to suggest that Romano knew that it would reflect well on him if the large amount of currency he had seen were forfeited, though they would have needed more than just possible motive and opportunity to get anywhere with this.

Was Summary Judgment Appropriate?

The court concluded that “the opinions of claimants’ experts do not raise a triable dispute as to the reliability of Deny’s alert. Accordingly, Deny’s alert to the briefcase supports the government’s claim of ‘a substantial connection between’ the seized funds and the commission of the drug-related offense.” Rejecting other non-canine-related arguments, the court determined that “the totality of circumstances in this case leads to only one reasonable conclusion—that the subject funds were substantially connected to a narcotics-related offense—the government is entitled to summary judgment of forfeiture.”

There was other evidence that the currency was involved in narcotics activities, such as the inconsistent and illogical stories provided by the claimants, yet the court and the government accepted that the canine evidence was fundamental to the government's position. That evidence, though not handled under the best of standards, did produce an alert. The possibility of cueing existed and claimants, though not presenting their evidence as well as might have been desired, should have had the opportunity to explore that issue and the dog's reliability at trial.

U.S. v. Funds in the Amount of One Hundred Thousand and One Hundred Twenty Dollars, 2011 WL 4686066 (N.D. Ill. 2011). For an extensive discussion of the history of currency sniffs, including probable cause issues, see Chapter 15 of Police and Military Dogs.

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

Station Identification as Forensic Procedure? California Court Strains Tracking Law in Drive-By Shooting Case

2011-10-23T16:39:00.073-04:00

Tony Walker was sitting in a parked car in the afternoon on May 7, 2007, when a Dodge Intrepid came past with three bald-headed Hispanic men, at least one of which, according to a witness, had a gun. Multiple shots came from the Intrepid, killing Walker and Jamal Varcasia, who was running across the street at that moment.

The witness, Raeshel Shay, was frightened and did not immediately report what she had seen. Later she was in custody for having a fraudulent gift card when, during a monitored phone call to her sister, she mentioned the shooting. Using photographic six-packs, she identified Jose Elias as the driver, Joseph Ruiz as the rear passenger, and Eric Perez as the front passenger. At trial, she identified them again but said Elias had been in the back seat and Perez had been the driver.

Elias and Ruiz were also identified by Johann Montoya as being in a car near the scene of the May 7 shooting, though Montoya made this statement to an officer after he was beaten by some of the men in the car on or about May 11. At trial, Montoya denied making a statement about the May 7 incident.

Bullet casings were recovered from the scene of the murders. All casings were fired from the same Remington Peters 9mm Luger, and probably all the recovered bullets and fragments were fired from that weapon as well. A .32 caliber handgun was recovered later during the investigation at a different location. This was not the murder weapon but there was some evidence that a second gun had been in the Intrepid on May 7 and the police considered it possible that this gun had been in the car during the shootings.

Station Identification

A station identification was performed on May 16, 2007, by Ted Hamm, a civilian handler working for the police, and his dog, Bojangles. Detective Grant Curry had three detectives take the three defendants—Ruiz, Elias, and Perez—to the third floor of the Pasadena Police Station and put them in different rooms. The opinion states:

“Neither Detective Curry nor Hamm knew where on the third floor the defendants were. Detective Curry then gave Hamm three bullet casings recovered from the crime scene and the .32 caliber gun. Using a Scent Transfer Unit (STU), described as a modified dust buster, Hamm extracted scent from the three casings and placed it on a sterile guaze pad. Hamm did the same with the .32 caliber gun, placing its scent on a different gauze pad.”

It is not clear why Hamm felt it necessary to place scent from all three casings on the same pad since more than one person may have loaded different rounds and separate pads from each casing might verify this. In any case, the scent pad created from all the casings was used by the dog to identify two individuals. There was no discussion concerning whether this might indicate that one of the rounds was loaded prior to the incident on May 7, which could argue that one of the defendants might not have been present during the shootings.

“Hamm brought his dog, Bojangles, up the elevator to the third floor and let Bojangles smell the pad containing the scent from the casings. Bojangles immediately went down the hall, making turns, and led Hamm and the detective to Perez. After Bojangles smelled a pad with the scent from the casings again, Bojangles this time led them to Elias. But when the scent pad was reintroduced a third time, Bojangles did not move.”

Why did the dog not move after being scented a third time? Presumably we are to understand that the dog had completed its tracking, but this was not explained. Did Hamm and Bojangles begin each sniff in the same location? Once the dog alerted to a suspect, was the suspect removed? Was a replacement put in the same place as the identified suspect had been? How many choices did Bojangles actually have in terms of suspects or individuals who looked like suspects after being scented each time?

A third identification took place in the Pasedena Police Station parking lot:

“The other detectives then took Elias, Ruiz, and Perez to the parking area, and Hamm had Bojangles smell the scent pad from the .32 caliber gun. Bojangles led to Ruiz.”

This change of location should also be explained. A parking lot identification has some of the same concerns as a station identification and most of the same questions raised above should have been of concern to the police and defense counsel.

A jury convicted Elias and Ruiz of the murders in February 2010. Elias received a sentence of life without possibility of parole plus two consecutive 25 year terms. Ruiz was sentenced to two life terms, each with a 15 year minimum plus two consecutive 25 year terms.

Canine Evidence at Trial

In a pre-trial hearing, the court determined that a scent transfer unit (STU) is, in the words of the appellate court, “generally accepted in the scientific community as a collection device and that it can pick up scents from items that have gone through volatile events or scents.” The trial court also determined that a foundation had been laid for the handler and the scent dog.

The appellate court found the assignment of error of the defendants regarding the canine evidence “imprecise,” but concluded that they were objecting to the STU on scientific grounds, but to the dog scent identification as lacking a proper foundation. The defense argued at trial that it had not been established that an STU could pick up multiple scents. It is not clear where the defense was going with this argument. Did someone on the defense team think that an STU selectively picked up only certain scents? In any case, the defense seems to have dropped this line, but then suggested that a dog could not differentiate multiple scents. The appellate court called this a foundational issue. In any case, canine detection is based on the knowledge that a dog can be scented to one odor and thereafter distinguish this odor from others that might be present at the same time. This was established scientifically by Otto Kalischer more than a century ago. Dogs can also be taught to remember multiple scents (up to 17 separate individuals were distinguishable by dogs in one experiment) and will continue to distinguish them for much longer than was required for the testing discussed here.

The appellate court concluded that the trial court did not abuse its discretion in finding that the prosecution established a foundation to admit the dog scent identifications. The court analyzed the history of dog tracking and scent lineups in California, describing cases reviewed extensively in Police and Military Dogs, including People v. Willis, 115 Cal.App.4th 379, 9 Cal.Rptr. 235 (2004), a station identification in which a California appellate court determined the admission of the identification using an STU was clear error, though harmless because of the other evidence. Despite the rejection of canine evidence in Willis, the appellate court here found that the testimony of the experts had provided an adequate foundation for admission of the scent identification evidence:

“We find that the trial court did not abuse its discretion in finding that the People laid an adequate foundation to admit the dog-scent identification evidence through the testimony of its expert witnesses: Dr. Kenneth Furton, a professor of Chemistry and Biochemistry; Rex Stockham, an FBI supervisory special agent who is the forensic canine program manager and research program manager for the evidence response team unit; and Ted Hamm, a civilian contract canine handler primarily employed by the Los Angeles County Sheriff's Department and Bojangles's handler and trainer.”

Hamm and Bojangles

The defense objected that there were no negative scent pads used, i.e., negative controls or zero trials in which the dog was scented on a pad unconnected with the case to verify that the dog would not start tracking if there was no scent related to the pad to be followed. One of the experts described his use of a negative scent pad to ensure his dogs are working properly, before the actual trailing is done. The court rejected this argument as follows:

“Using such ‘controls,’ however, is not common practice, and the only law enforcement agency that uses controls is the FBI. Hamm's failure to use a negative scent pad did not therefore establish that the procedure he used was a bad practice.”

Hamm is familiar with negative controls. In a 2005 case, the Los Angeles Superior Court cited several experts (including Stockham) regarding the value of negative controls and said that Hamm, a handler in that case as well, “uses negative checks and Knight responds reliably.” People v. Salcido, Docket No. GA052057 (Los Angeles Superior Court 2005). The authors are aware of law enforcement agencies other than the FBI using negative controls, but perhaps the court is correct as to California police practice.

The defense also argued that Hamm’s procedures were faulty because he only used one dog, not two. The court also rejected this:

“Stockham, however, merely testified that while he prefers to use more than one dog in his investigations, he uses single dogs too. Stockham did not testify that the only generally accepted practice is to use two dogs. In fact, Stockham praised Hamm as ‘very competent’ and in the ‘top echelon of experienced handlers in the U.S.’ He considers Hamm to be a leading expert in scent trailing.”

In a properly conducted scent lineup, it is our opinion that several dogs increase the reliability of an identification. (See draft paper of Ensminger, Jezierski, and McCulloch, pp. 58-63, describing how requiring three or more dogs for a positive identification significantly reduces the number of identifications, but also reduces the chance of a misidentification almost to zero).

The defense then argued that a finding of adequate training and reliability could not be made because Bojangles was not certified. The court rejected any certification requirement, and concluded that one of the experts in the case, Furton, though mentioning certification, had not meant that it was required:

“Defendants incorrectly assert that Dr. Furton testified that a dog must go ‘through certain blind tests and reach a set percentile of correct identifications’ to be certified in California. What Dr. Furton actually said was a California organization he belongs to requires a training log, blind tests, and a certain percentile of correct identification to certify a dog; he did not testify that California has a certification standard or process. Rather, there is no national standard for certification or training of scent dogs, and standards vary from state to state. Neither California nor the Los Angeles County Sheriff's Department have requirements for certifying trailing dogs. The Scientific Working Groups on Dogs and Orthogonal Detection Guidelines (SWGDOG), an international working group funded by the FBI, is developing best practice certification and assessment guidelines for police-related canine disciplines.”

Hamm is presumably not opposed to certification. In Salcido, he used a dog named Knight that had been certified in 1998, apparently with the California Bloodhound Handlers Coalition, though Hamm did not purchase the dog until 2000. The court then summarized the position of another expert, Rex Stockham of the FBI, regarding training and certification:

“Although there are no national or specific state standards for training or certifying a scent dog, Stockham described his training process and how he determines a dog's reliability. Stockham keeps detailed training records to compare and contrast the milestones a dog should reach. To determine a dog's reliability, he relies on frequent observation of teams and blind testing, which the FBI routinely conducts. Before Stockham considers deploying a dog for a job, he subjects it to a series of tests and controls. The ‘best practice’ is for someone not routinely involved in the dog's training to assess its readiness for fieldwork. But a dog's handler also has the ability to determine whether the dog is positively or negatively trailing a scent. Once a dog is ready for fieldwork, the dog still requires maintenance training, and the industry standard is a scent dog should have 16 hours of maintenance training, although some people in the field believe that once a month is sufficient.”

Although some of Stockham’s comments would seem to provide a model different from what Hamm actually used, there was no further discussion of the disparity.

The defense also pointed out that Hamm had lost training logs dated before 2008 in a computer crash and argued that this meant that “Bojangles’s training and abilities were merely anecdotal.” The court responded:

“We disagree. Hamm testified extensively and specifically about his and Bojangles's background. Hamm has trained bloodhounds for 21 years and participated in over 2,000 investigations. He begins training a dog when it is a puppy. The dog first watches a person run away and then follows. Then the person drops an object that has his or her scent on it. Eventually, the person goes out of the dog's sight, and the dog must transition from visually following the person to using its nose to find the person. The length, age, and complexity of the trail is slowly increased. Hamm also works blind, meaning he doesn't know where the person is or what the result should be. The training process takes about two years, although a dog continues to do maintenance training even after it is ready to work. He tries to do maintenance training at least once a week and more often if he is able.”

Hamm is no doubt busy. In a 2008 opinion, the court cites the trial court’s description of Hamm as having been involved in 1,200 cases. People v. Alonzo, 2008 WL 2248628 (Ct. Appp. 2008). This suggests that Hamm works on at least 200 investigations a year, a significant number for a contract worker.

The absence of training records is not made trivial by a restatement of the training procedures preferred by the handler of the dog. Hamm has testified in many cases, and it would seem likely that prior records might have been introduced in other cases where he testified, but this possibility was not discussed. The court continued regarding Hamm’s training regimen:

“Hamm trained Bojangles in this manner, on trails fresher than 48 hours, to discriminate between human scents and to identify only the scent he's given. Bojangles has also been trained in different environments and on different surfaces. He's been trained with the STU and on a variety of scent articles, including spent cartridge casings. Bojangles frequently participates in a weekly maintenance training session. Hamm has been doing casework with Bojangles for three or four years with no history of falsely identifying targets in either blind testing or casework. Bojangles has confirmed cases, which are cases in which the dog's conclusion is confirmed by other sources, for example, witness statements, confessions, and DNA. To Hamm's knowledge, Bojangles has no confirmed negatives, where the dog found a scent and trailed to a subject who did not match the scent.”

The court apparently accepted Hamm’s testimony that Bojangles had “no history of falsely identifying targets,” and that “[t]o Hamm’s knowledge, Bojangles has no confirmed negatives.” Not many handlers could say this about the entire history of any dog. A footnote explains that “Hamm has been able to confirm approximately 40 of Bojangles’s cases out of 300.” This meant that the defense apparently had access to about 13% of the dog’s field work.

The defense also argued that there was no evidence that a bluetick coonhound had particular scent abilities. Here, the court correctly observed that “to the extent a dog’s breed is related to its ability to discriminate scents, there has been an insufficient foundation….” Coonhound mixes have been effective trackers since the nineteenth century.

Thus, the defense had no access to a significant part of the dog’s training history or to the vast majority of its field work. Consequently, neither did the experts. A good part of the prosecution’s case, therefore, rests on the testimony of the handler, to which the court was quite receptive.

A Florida court recently excluded canine evidence where adequate field records could not be supplied (though the records there were more substantial than those available here), stating that if “an officer fails to keep records of his or her dog's performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs.” We suggested in that context, which could have involved the exclusion of evidence in the future from a large number of canine teams that had no advance notice that additional recordkeeping would be required, that the Florida court should perhaps have fashioned some interim means of qualifying a dog. The solution in the case here would have been to allow independent testing of Hamm and Bojangles prior to the admission of the canine evidence. We suggest that, if such an approach were accepted, the testing should consist of an independently monitored scent lineup, since duplicating conditions on the third floor of the Pasadena Police Station would be impossible with any scientific objectivity.

Human Scent

The court then discussed the uniqueness of human scent, the ability of dogs to pick up scent from an object, and the ability of dogs to differentiate multiple scents on an item. Relying primarily on the experts, the court correctly determined that these elements were supported by scientific findings as accepted by prior California cases.

Instruction to the Jury

California provides for standardized instruction in tracking cases, and the CALCRIM No. 374 was used for this purpose:

“You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you rely on dog-tracking evidence, there must be, one, evidence of the dog's general reliability as a tracker, and, two, other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [¶] In deciding the meaning and importance of the dog-tracking evidence consider the training, skill and experience, if any, of the dog, [its] trainer or [its] handler together with everything else that you learned about the dog's work on this case.”

The defense pointed out that the case at hand was not a typical tracking case in that the dog did not follow a scent from the crime scent to a location where the defendant had been or was found, yet the instructions were issued without objection. The court acknowledged that the situation was not typical:

“Although CALCRIM No. 374 might seem more appropriate to [tracking situations], it is not inapplicable to a station identification. The instruction simply says that there must be ‘other evidence that the dog accurately followed a trail that led to the person who committed the crime.’ (Italics added.) Bojangles smelled scent from the .32 caliber gun and trailed to Ruiz. Although there was no physical evidence that a .32 caliber gun was used during the crimes (only nine-millimeter bullets and casings were recovered from the crime scene and from the victims' bodies), Raeshal Shay testified that she might have seen two guns; hence, it was the prosecution's theory that Elias and Ruiz committed the crimes together and that there was a second gun, possibly the .32 caliber gun found at Ruiz's girlfriend's house. The dog-scent evidence therefore merely connected Ruiz to the .32 caliber gun; there had to be other corroborating evidence that Ruiz was the person who committed the crime.”

The court found the “other corroborating evidence” in other testimony regarding the actions of the defendants, and after reviewing gang-related issues, affirmed the conviction.

A Hybrid Procedure?

There was far too little discussion of the station and parking lot identifications, and too little consideration of how they were conducted. A floor plan of the third floor of the Pasadena Police Station would have been helpful in determining what sort of tracking was really involved. How many rooms were on that floor? How many suspects were on the floor? If there were only a few suspects on the floor, then the possibility of cueing is not negligible. Did any officers on the floor, either with the defendants or otherwise, know why the dogs were working there? If so, the possibility of third-party cueing was present, a factor that scientifically conducted scent lineups remove by insisting that no one within sight of the dog know the correct station in a lineup.

If the dog was not trained with negative controls, it may have performed its work in expectation of a reward. How many individuals not in police uniforms and dressed as gang members were actually on the third floor that the dog could choose from? In a scent lineup, the possibility of randomly correct identification increases as the number of stations in the lineup decrease. Was this issue considered?

The tracking aspect of the procedure also needs to be explained in more detail. Did all the defendants on the floor use the same hallway and follow the same path except when entering separate rooms? Did any of the suspects enter any rooms where other suspects were placed, even if only temporarily? Did the dog use the same hallways and passages as the defendants? Did any defendant enter a room through a passage where the dog could not sniff? If so, this begins to look like a modified scent lineup rather than a modified tracking or trailing.

Was the procedure videotaped? Although scent lineups should, in our opinion, be videotaped, it is seldom practical to videotape a tracking or trailing. Here, however, given the limited space and the advance placement of the suspect, it would have been advisable to use video cameras. If this is to continue to be the Pasadena Police Department’s method of scent identification, stationery video cameras should be installed in the third floor in places that will capture the movements of the suspects as well as those of handlers and dogs.

The presence of other individuals than those directly involved in the identification should have been recorded. Certainly this would be required in a scent lineup. So who was present in the hallways? What did they know? Were doors to the rooms with the defendants open? Were all other doors on the floor open as well? Could individuals in the hallways see the dogs when they entered the rooms and presumably alerted to the suspects? If only the doors to the rooms with the defendants were open, there was little possibility for randomness in the dog’s indications.

There were other differences from tracking. In most tracking situations, the dog has the possibility of following a trail that ends with no suspect in the vicinity. The suspect may cross streams, enter cars, disappear in countless ways. There is a good chance that the dog will abandon the trail. The possibilities of what can happen in an outdoor tracking are often infinite. Here it appears the handler knew there was a correct choice to be made in a finite space, much as if the handler was guaranteed that one station in a lineup would be a positive match. This is another reason why some sort of negative control should have been performed, one where Hamm would not know that there was no match to be found on the floor, but where individuals who looked like suspects were present in some of the rooms.

Some research has indicated that a longer trail reinforces the dog’s ability to identify a suspect as the individual being tracked. (Police and Military Dogs, p. 62) The trails here were presumably very short. One study found that dogs often follow the correct trail but fail to alert to the correct party at the end. In one segment of that study, dogs followed the correct trail 100% of the time, yet alerted to the correct “suspect” only 73% of the time. Did Bojangles ever alert to anyone besides a suspect? Apparently not, yet the fact the defendants were accompanied by escorting detectives raises the possibility that the dog was not always tracking a defendant. Without a videotape the only witness whose testimony could be elicited on this question was apparently Hamm. Did defense counsel obtain detailed accounts from the defendants of what happened on the third floor of the Pasadena Police Station? Even if so, would they have understood that they were seeing an alert to someone besides themselves?

Hamm and the Pasadena Police Department have begun to use station identification as a procedure. This formalized station identification fits neither the parameters that are applied by SWGDOG or any certifying organization to a scent lineup or most tracking environments. The court rejected that the argument that the procedure used by Hamm had to be vetted as a novel scientific approach. That may be correct because it was an amalgam of two generally accepted procedures. Yet because it was an amalgam it must be analyzed for what it is, not assumed to pass as a tracking with insignificant variations.

Station identifications have often occurred accidentally. The trail goes cold, the dog stops tracking and is returned to the station, where a suspect has been brought in on other evidence, the dog picks up the scent inside the station and resumes tracking, then alerts to the suspect. Here this result was not accidental but expected.

Hamm and Pasadena police officials have used the third floor of the Pasadena Police Station before. See California v. Smith, 2011 WL 1350762 (Ct. App. 2011). Were the defendants put in the same rooms as those in prior cases? If so, this also raises the possibility that Hamm may have expected the defendants to be in certain rooms on the floor. Were these rooms ever sterilized? How often was the procedure on the floor being used? Could anyone be certain that odor from prior suspects was not still present?

There are reasons why scent lineups must be so rigorously conducted in order to be fair, and why their use in some countries in Europe (the Netherlands, Poland) has been so considerably restricted. Hamm’s station identification procedures were not required to meet any scent lineup standards because the court accepted that this was a tracking situation. Yet the variations from tracking were sufficiently great that it must be asked why scent lineups were not used, since these could involve parameters that would assure a high level of reliability.

Conclusion

The case is disturbing at a number of levels. The court affirmed the reliability of Bojangles based on the handler’s description of the dog’s history, without either adequate training or field records, or any certification of the handler and dog as a team. Although the court was correct that certification can vary from state to state and organization to organization, the presence of records of a certifying organization could have been of considerable assistance in a case where the handler could offer only fragmentary records.

Station identifications have a legitimate place in American legal history, and have resulted in properly admitted identifications of suspects since at least 1918. Nevertheless, the Pasadena Police Department, with the help of California courts, has inappropriately elevated this procedure to a forensic technique. Significant differences of this formalized station identification from a typical tracking situation were ignored in this case, and have given the green light to further use of a procedure that fails to take into account the controls that can assure that a scent lineup is objective. California has here accepted an approach that may far too easily result in misidentifications.

It must be acknowledged that canine evidence is often important in drive-by shootings where witnesses can disappear for many reasons, and California is right to want to preserve the possibility of using this evidence. The solution is to adopt skillfully managed scent lineups, not to use a slapdash cross between tracking and scent lineups.

A larger concern is that if American law enforcement authorities continue to employ poorly designed scent identification techniques, the label of junk science that has been given by the Innocence Project and others to such techniques will stick after a few more reversals and there will be considerable pressure on U.S. courts to stop allowing scent identification altogether. Unfortunately, the junk science label is correct as to most--perhaps all--scent lineups described in any detail in American judicial opinions. It would be a shame to have such a wholesale rejection of scent identification since scent lineups can be made much more rigorous than has been true in the United States so far and could be a valuable forensic technique for law enforcement.

People v. Elias, B224372, 2011 WL 3949808 (Ct. App. 2011). It has been pointed out to us that we should note that this opinion has not been certified for publication and, under California Rules of Court, Rule 8.1115, may not be cited or relied on by a court or party except under limited exceptions. This rule has been the subject of considerable criticism. One commentator noted that "[t]here is no valid reason why litigants should not be able to let a trial judge or appellate justice know how their colleagues decided a case involving similar facts even if that opinion is unpublished." Keshavarzi, M. (May 7, 2010), Daily Journal. In any case, our criticisms are not part of a legal proceeding.

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