The Common Law of Pit Bulls: Maryland’s Highest Court Imposes Strict Liability Without a Statute

Faced with a gruesome attack and lacking a strict liability statute to apply to the landlord, whose tenants’ dogs were responsible for the attack, the highest court in Maryland determined that the matter could be dealt with by changing the common law.  Thus, there is now common law specific to pit bulls. 

In Tracey v. Solesky, 2012 WL 1432263 (Md. 2012), the Maryland Court of Appeals held, three justices dissenting, that harboring a pit bull was an inherently dangerous activity for which the landlord (Tracey) could be held strictly liable.  The Court noted that pit bull cases have a long history in Maryland and entered into a discussion of that history in order to support its conclusion that strict liability could be imposed as a change in the common law of the state, without a legislative mandate. The problem has become particularly great in the last 13 years when courts have had to deal with “seven instances of serious mauling by pit bulls upon Maryland residents resulting in either serious injuries or death … including the two boys attacked by the pit bull in the present case.”  In a number of cases landlords have been held liable for injuries caused by the pit bulls of tenants. 

Since this is a change in the common law, the law made by judges, it is likely that other high courts in the U.S. will seriously consider arguments that, even where there is no anti-pit bull statute, strict liability may be imposed as to pit bull attacks. 

Pit Bull Attacks in Maryland Courts

As far back as 1916, in Bachman v. Clark, 128 Md. 245, 97 A. 440, a pit bull terrier crossed the street and attacked a ten-year-old boy, seriously injuring him.  A witness picked up a piece of timber and killed the dog with it. 

In Shields v. Wagman, 350 Md. 666, 714 A.2d 881 (1998), a pit bull owned by the operator of an automobile repair business attacked a customer in the shopping center where the repair business was located.  The dog, named Trouble, also attacked another tenant.  Both attacks resulted in serious injuries, the second after the victim had climbed onto the roof of a car in an attempt to escape the pit bull.  The Court of Appeals held the landlord had actual knowledge that Trouble was dangerous and had the right to cause the removal of the pit bull from the premises but failed to do so, and in not so doing, had negligently allowed the attacks to occur. 

Just two months later, in Matthews v. Ameberwood Associates Ltd. LP, Inc., 351 Md. 544, 719 A.2d 119 (1998), a pit bull named Rampage attacked and killed a child in an apartment building.  The Court of Appeals found that because the landlord’s employees had reported Rampage’s aggressiveness and viciousness on prior occasions to management personnel, that knowledge was imputed to the landlord, and because the landlord had the right not to renew the lease or remove the pit bull under a no-pets provision in the lease, he could be held liable. 

In reaching its decision in Matthews, the Court considered the adequacy of a pit bull’s pen and cited a New Mexico case, Garcia v. Village of Tijeras, 108 N.M. 116, 767 P.2d 355, which had determined that “extraordinary measures are required for confining American Pit Bull Terriers, such as a six foot chain link fence with an overhanging ledge to keep the dogs from jumping out....”

In Moore v. Myers, 161 Md.App. 349, 868 A.2d 954 (2005), a pit bull chased a twelve-year-old girl into a street where she was run over by an automobile and suffered two broken arms, a broken leg, and a fractured jaw.  Prince Georges County, where the event occurred, had a statute requiring owners of pit bulls to keep them in enclosures or leashed at all times.  The owner’s son, according to the evidence, had sicced the dog on three girls, one of whom was the victim.   

In Ward v. Hartley, 168 Md.App. 209, 895 A.2d 111 (2006), the landlord was sued after the following occurred:

“[A] taxi driver was dispatched to pick up a passenger for transportation to the Kennedy Kreiger Institute. When he knocked on the door to the leased premises, he heard someone tell children not to open the door. He stepped back and at the same time a child opened the door and a pit bull came charging out as he heard someone yell ‘Get the dog.’ He hit the pit bull with rolled-up paper he had in his hand and the pit bull grabbed his foot. He then ran to his cab with the pit bull still holding onto his foot and, with the pit bull still attached, climbed on top of the car. A police car appeared on the scene, and as it did, two boys ran out of the house laughing and pulled the dog off of the cabdriver's foot. The cab driver's foot was severely injured and required surgery…. There was no evidence in the case that the landlord knew that a pit bull was being kept on the premises until he heard about the incident with the cab driver. The Court of Special Appeals, in holding for the landlord, opined: ‘Keeping a pit bull did not violate any covenant of the lease, nor did it violate any law or ordinance. No provision of the lease gave the landlord control over any portion of the rental premises. Thus, appellees had no duty to inspect the premises.’”

Although the landlord avoided liability here, it is unlikely the pit bull owner could have.  It seems he needed some training for his children as well as for his dog. 

The Attack on Dominic Solesky

In the case before the Court of Appeals, Clifford “escaped twice from an obviously inadequate small pen and attacked at least two boys at different times on the same day.”  The second boy was Dominic Solesky, who sustained life-threatening injuries and underwent five hours of surgery at Johns Hopkins Hospital to repair his femoral artery.  He spent 17 days in the hospital and underwent additional surgeries, and was in rehabilitation therapy for a year after his release. 

The Court, as mentioned above, established “a strict liability standard in respect to the owning, harboring or control of pit bulls and cross-bred pit bulls in lieu of the traditional common law liability principles that were previously applicable to attacks by such dogs.”  The Court acknowledged that it was imposing “breed-specific liability standards,” elaborating as follows:

“We are modifying the Maryland common law of liability as it relates to attacks by pit bull and cross-bred pit bull dogs against humans. With the standard we establish today (which is to be applied in this case on remand), when an owner or a landlord is proven to have knowledge of the presence of a pit bull or cross-bred pit bull (as both the owner and landlord did in this case) or should have had such knowledge, a prima facie case is established. It is not necessary that the landlord (or the pit bull's owner) have actual knowledge that the specific pit bull involved is dangerous. Because of its aggressive and vicious nature and its capability to inflict serious and sometimes fatal injuries, pit bulls and cross-bred pit bulls are inherently dangerous.”

Old Common Law

Since the Court determined to modify prior common law, it entered into a discussion of what law it was changing.  Citing an 1882 case, Goode v. Martin, 57 Md. 606 (1882), the Court had there stated that “to render the owner liable in damages to any one bitten by his dog, it must be proved not only that the dog was fierce, but that the owner had knowledge that he was fierce.”  A presumption that the dogs in the case were fierce and dangerous arose, however, from the fact the defendant kept them tied up during the day, a presumption that made sense in an era long before leash laws.

Looking at Harper, James, and Gray on Torts (3^rd ed. 2007), the Maryland Court of Appeals found the following statement in the treatise persuasive:

“It thus appears that one keeps dangerous animals at one’s peril, that is, at strict liability, but otherwise as to animals ‘not dangerous.’  As to the former class, it is no defense that the keeper employed reasonable care, or even a high degree of diligence to prevent their escape.  Liability is independent of any fault on the part of the owner. “

The Court of Appeals discussed its own ability to change the common law, noting that in a case from 1821, State v. Buchanan, 5 H.&J. 317, it had referred to the inherent dynamism of the common law which made it subject to judicial modification in the light of modern circumstances or increased knowledge. 

Common Law of Pit Bulls

The Court of Appeals noted that it had discussed the difference between pit bulls and other breeds in Matthews, where it had stated:

“[T]he foreseeability of harm in the present case was clear. The extreme dangerousness of this breed, as it has evolved today, is well recognized. ‘Pit bulls as a breed are known to be extremely aggressive and have been bred as attack animals.’ Giaculli v. Bright, 584 So.2d 187, 189 (Fla.App.1991). Indeed, it has been judicially noted that pit bull dogs ‘bite to kill without signal’ (Starkey v. Township of Chester, 628 F.Supp. 196, 197 (E.D.Pa.1986)), are selectively bred to have powerful jaws, high insensitivity to pain, extreme aggressiveness, a natural tendency to refuse to terminate an attack, and a greater propensity to bite humans than other breeds. The ‘Pit Bull's massive canine jaws can crush a victim with up to two thousand pounds (2,000) of pressure per square inch—three times that of a German Sheppard or Doberman Pinscher.’ State v. Peters, 534 So.2d 760, 764 (Fla.App.1988) review denied, 542 So.2d 1334 (Fla.1989).”

The Court noted that after its decision in Matthews, the Journal of the American Veterinary Medical Association published a “special report” stating that:

“From 1979 through 1996, dog attacks resulted in more than 300 dog-bite related fatalities in the United States. Most victims were children. Studies indicate ... that pit bull-type dogs were involved in approximately a third of human ... [fatalities] during the 12 year period from 1981 through 1992 ....”

The same report indicated that, in the 12-year period ending in 1992, almost half of fatalities were caused by Rottweilers, but that in more recent years pit bulls have caused more fatalities than Rottweilers. From 1979 to 1996, pit bulls and Rottweilers accounted for 67% of human dog bite related fatalities.  The AVMA referred to this as indicating a “breed-specific problem with fatalities.” (A 2009 study, Kaye et al., not cited by the court, found in a survey of cases at the Children's Hospital in Philadelphia that over 50% of dog bite attacks on children over a recent five-year period were caused by pit bulls.)

The Court stated that the AVMA’s statistics “may reflect the increasing popularity of pit bulls, i.e. more pit bulls—more attacks.  Other issues such as training, use by persons in the illegal drug trade, etc., may be causative factors.”  The Court cited a website, Animal People, for an estimate that pit bulls now make up about 5% of the total dog population of the United States.  Of dogs in animal shelters, 23% in a survey of 5,236 dogs were pit bulls, suggesting that pit bulls end up in animal shelters at a much larger ratio than any other breed, presumably in part from instances of aggression.    

A recent study of patients with dog bite injuries (Bini et al. 2011) found that not only were pit bull attacks more common than attacks by other breeds of dogs, but also those bitten by pit bulls were injured more severely, were more likely to be admitted to a hospital, more likely to have higher charges once admitted, and more likely to die.  The authors of the study concluded that “strict regulation of pit bulls may substantially reduce the U.S. mortality rates related to dog bites.” 

Other Jurisdictions

The Maryland Court of Appeals cited a case, City of Toledo v. Tellings, 114 Ohio St.3d 278, 871 N.E.2d 1152 (2007), in which the Ohio Supreme Court had upheld most of Toledo’s breed-specific regulations that classified pit bulls as “vicious dogs.”  The Ohio Court stated:

“The trial court cited the substantial evidence supporting its conclusion that pit bulls, compared to other breeds, cause a disproportionate amount of danger to people. The chief dog warden of Lucas County testified that (1) when pit bulls attack, they are more likely to inflict severe damage to their victim than other breeds of dogs, (2) pit bulls have killed more Ohioans than any other breed of dog, (3) Toledo police officers fire their weapons in the line of duty at pit bulls more often than they fire weapons at people and other breeds of dogs combined, (4) pit bulls are frequently shot during drug raids because pit bulls are encountered more frequently in drug raids than any other dog breed. The trial court also found that pit bulls are ‘found largely in urban settings where there are crowded living conditions and a large number of children present,’ which increases the risk of injury caused by pit bulls.”

As discussed in a prior blog, the danger of a pit bull in a police raid is not just to the police, since an officer may feel the need to eliminate the risk from the pit bull by shooting it.

In 2006, a Kentucky appellate court approved a trial court’s determination that pit bull terriers have “inherently vicious and dangerous propensities.”  Bess v. Bracken County Fiscal Court, 210 S.W.3d 177 (Ct. App. 2006). 

In two Florida cases consolidated on appeal, The Florida Bar v. Pape and The Florida Bar v. Chandler, 918 So.2d 240 (2005), two Florida attorneys were disciplined under the Rules of Professional Conduct for using advertisements analogizing themselves as pit bulls. The court said that the analogy ignored the darker side of the qualities often associated with pit bulls: malevolence, viciousness, and unpredictability.  Of course, the lawyers were reflecting what their clients want.  At an initial interview where a client was asking what he wanted in his trial counsel, I remember the answer: “I want a pit bull.”  Even Sarah Palin found common ground between pit bulls and soccer moms. One wonders if the lawyers would have been disciplined had they compared themselves to Rottweilers or standard poodles.  I'm considering adding 'The Labradoodle of Lawyers' to my business card.

In a District of Columbia case, McNeely v. U.S., 874 A.2d 371 (Ct. App. 2005), two dogs attacked a woman as she put garbage in the trash can behind her house.  She tried to climb over a fence but one of the dogs pulled her off it and both dogs began to maul her.  “During the ensuing attack, skin, muscle, and nerve tissues were bitten off from various parts of her body, including her leg and both arms; one of her toes was nearly bitten off, and she lost a large amount of blood. The attack finally ended when Avery's son, Jerrel Bryant, and two other men successfully chased the dogs off by beating them with an ax and baseball bat.”  The appellate court upheld the conviction and stated that all that had to be shown under the District’s Pit Bull and Rottweiler Dangerous Dog Designation Emergency Act of 1996 was that the pit bulls had attacked without provocation and that the owner knew the dogs he owned were pit bulls. 

In The Colorado Dog Fanciers, Inc. v. The City of Denver, 820 P.2d 644 (1991), the Supreme Court of Colorado upheld anti-pit bull legislation, rejecting the argument that the statute should be overturned because it “allows the determination that a dog is a pit bull based on nonscientific evidence.”  Thus, a dog with the physical characteristics of a pit bull could be banned based on its appearance, even if it were, say, a cross between a bull dog and a Labrador.  “Since ample evidence exists to establish a rational relationship between the city's classification of certain dogs as pit bulls, and since there is a legitimate governmental purpose in protecting the health and safety of the city's residents and dogs, the trial court correctly concluded that the ordinance did not violate the dog owner's right to equal protection of the laws.”

The Maryland Court of Appeals cited Harper, James, and Gray on Torts as finding that negligence could be established under a strict liability statute regarding certain dogs in Arizona, Florida, Illinois, Iowa, New Jersey, Nebraska, Oklahoma, Connecticut, Wisconsin, and Ohio.  Local and other laws also impose strict liability in California, South Carolina, and the District of Columbia. 

Summary Statement by the Court

Concluding all these strands, the Maryland Court of Appeals summarized its holding by stating that “upon a plaintiff’s sufficient proof that a dog involved in an attack is a pit bull or a pit bull mix, and that the owner, or other person(s) who has the right to control the pit bull’s presence on the subject premises (including a landlord who has the right and/or opportunity to prohibit such dogs on leased premises as in this case) knows, or has reason to know, that the dog is a pit bill or cross-bred pit bull mix, that person is strictly liable for the damages caused to a plaintiff who is attacked by the dog on or from the owner’s or lessor’s premises.” 

Dissent

Three justices dissented, criticizing the majority for holding that a “trace of pit bull ancestry” would be enough to impose strict liability. The dissenters saw this as a case where bad facts led “inevitably to the development of bad law.”  They stated that “in accordance with the well-settled common law standard of strict liability, the breed of the dog, standing alone, has never been considered a sufficient substitute for proof that a particular dog was dangerous or had a violent nature.”  Also:

“Under the new rule announced today, however, the only corrective action an owner, keeper, or landlord could possibly take to avoid liability for the harm caused to another by a pit bull or mixed-breed pit bull is not to possess or allow possession of this specific breed of dog on the premises. Conversely, any other breed of dog in the possession of the owner or on premises controlled by the landlord, no matter how violent, apparently, would be judged by a different standard. As a result of the majority opinion, it is unclear as to what standard should be applied prospectively to owners and landlords for the liability of other breeds of dogs kept on the premises.” 

Of course, encouraging landlords not to rent to tenants with pit bulls will be an inevitable result of this case, and even pit bull service dogs will undoubtedly encounter resistance.The dissenters cited the 2006 article by Hussain as saying that more than 25 breeds of dogs are commonly mistaken for pit bulls. 

“[S]ome experts indicate that the term 'pit bull' does not describe any one particular breed of dog; instead, it is a generic category encompassing the American Staffordshire Terrier, the Staffordshire Bull Terrier, and the American Pit Bull Terrier…. Neither the American Kennel Club nor the United Kennel Club recognizes all three breeds, and the breed descriptions and standards provided by the two organizations differ…. It is difficult for courts, therefore, both to determine whether a particular dog should be categorized as a pit bull and to differentiate between pit bulls and other breeds.”

As Voith (2009) has noted, there is a discrepancy between breed determination based on physical attributes and scientific determinations. 

Breed-specific liability may provide a “superficial sense of security because many factors completely unrelated to the breed or appearance of dogs affect their tendency toward aggression, including early experience, socialization, training, size, sex, and reproductive status.” The dissenters argued that the courts should leave breed-specific rules to the legislatures, not attempt to change the common law as was done here. 

Conclusion

I have disagreed with breed-specific legislation before, and disagree with this modification of the common law.  Nevertheless, I can understand the frustration of a court when faced with serious attacks by dogs whose owners have not trained them and do not know how to control them, and often do not know how to control their children. 

The largest weakness of the decision is that pit bulls are not the only dangerous dogs, and people who want large aggressive dogs may easily shift their preferences to other breeds and mixed breeds. Great Danes could come into fashion among the drug crowd, ending the successful marketing of the dog as a gentle breed and bringing back the image of their ferocity they once had. 

Also, what is a pit bull?  Is genetic testing to be used when breeding records indicate that a dog that looks like a pit bull is in fact a cross between a bull dog and a Weimeraner?  If a dog that does not look like a pit bull, but without any prior history of aggression, attacks a child fatally, will the parents be able to test the dog’s DNA for the presence of some pit bull markers?  If there is a common law of pit bulls, that common law will have to be interpreted by lower courts in Maryland in countless possible situations.  The decision ignores the inherent plasticity of the canine phenotype.

I sometimes think that owners of large dogs with large jaws should be given an IQ test before being allowed to have a potentially dangerous animal. They should probably be given an IQ test before being allowed to have children as well.  These laws are, in reality, laws against the kinds of people who obtain dogs for defensive and aggressive purposes, often based on lifestyle choices.  In the end I am afraid such laws are unenforceable. 

Additional Sources:

1. Beaver B. V., et al. (2001). A Community Approach to Dog Bite Prevention, Journal of the American Veterinary Medical Association, 218, 1732.
2. Bini, J.K., et al. (2011). Mortality, Mauling, and Maiming by Vicious Dogs.  Annals of Surgery, 253, 791.
3. Collier, S. (2006). Breed–Specific Legislation and the Pit Bull Terrier: Are the Laws Justified? Journal of Veterinary Behavior, 1, 17.
4. Grey, K. (2003). Comment: Breed–Specific Legislation Revisited: Canine Racism or the Answer to Florida's Dog Control Problems? 27 Nova Law Review 27, 415-432.
5. Hussain, S.G. (2006). Note: Attacking the Dog Bite Epidemic: Why Breed–Specific Legislation Won't Solve the Dangerous–Dog Dilemma, Fordham Law Review, 74, 2847.
6. Kaye, A.E., Betz., J.M., and Kirschner, R.E. (2009). Pediatric Dog Bite Injuries: A 5-Year Review of the Experience at Children’s Hospital of Philadelphia. Plastic Reconstruction Surgery, 124(4), 551-8 (Five hundred fifty-one patients aged 5 months to 18 years were treated in the emergency department after suffering dog bite injuries during the study period. The majority of injuries (62.8 percent) were sustained by male children. Dog bite injuries were most prevalent during the months of June and July (24.1 percent). Grade school-aged children (6 to 12 years) constituted the majority of victims (51 percent), followed by preschoolers (2 to 5 years; 24.0 percent), teenagers (13 to 18 years; 20.5 percent), and infants (birth to 1 year; 4.5 percent). Injuries sustained by infants and preschoolers often involved the face (53.5 percent), whereas older children sustained injuries to the extremities (60.7 percent). More than 30 different offending breeds were documented in the medical records. The most common breeds included pit bull terriers (50.9 percent), Rottweilers (8.9 percent), and mixed breeds of the two aforementioned breeds (6 percent).)
7. Medlin, J. (2007). Comment: Pit Bull Bans and the Human Factors Affecting Canine Behavior. DePaul Law Review, 56, 1285.
8. Ready, L. (April 28, 2011). Pit–Bull Terrier Therapy Dogs Provide Great Service to Their Community, Best Friends Animal Society Pit Bull Terrier Initiatives.
9. Sacks, J.J., et al. (2000). Breeds of Dogs Involved in Fatal Human Attacks in the United States Between 1979 and 1998. Journal of the American Veterinary Medical Association, 217, 836.
10. Voith, V.L. (July 11, 2009). Shelter Medicine: A Comparison of Visual and DNA Identification of Breeds of Dogs. Proceedings of Annual AVMA Convention.
11. Wisch, R.F. (2006). Quick Overview of Dog Bite Strict Liability Statutes. Michigan State University College of Law Animal Legal & Historical Center (May 2006, updated 2010).

Thanks to L.E. Papet for comments and additional sources.

Some Bills before Congress Will Help Dogs, Some Will Help National Security, but Some Seem Designed to Help Special Interests

One should periodically review what Congress is up to with regard to one’s interests, and even though many proposals regarding dogs are going nowhere, either because it is an election year or because some ideas are poorly conceived or drafted, certain trends can be detected.  The strongest trend evident in current proposals regarding dogs is a willingness of Congress to hand over responsibility for canine issues to private contractors and organizations.  Sometimes this is evident on the face of the legislation, but sometimes one must consider where the Senator or Congressman is from, and what constituents in his or her jurisdiction would benefit.  Other times it is not inappropriate to speculate about who may have assisted a legislator’s staff in drafting a proposal. 

Concomitant with the preference of certain members of Congress to privatize canine functions may be a tendency to assume that the welfare of working animals will be adequately protected by the private sector and non-federal agencies.  Legislation dealing with retired military working dogs, while admirable, will often not apply to contract working dogs owned by independent companies in the business of supplying dogs and handlers for military and security purposes.  While some organizations make appropriate provision for retiring dogs, I believe that there are cases where dogs are not being placed or appropriately protected at the end of their careers.  This too should be of concern to Congress, yet no such concern is reflected in current legislative initiatives.    

So here’s a brief snapshot of what’s now on the Congressional plate with regard to dogs.

Military and Security Proposals

H.R. 1900, the Surface Transportation and Mass Transit Security Act of 2011, provides that the Assistant Secretary of Homeland Security, consulting with the Under Secretary for Science and Technology, may conduct a demonstration project in a passenger rail system to test technologies that would strengthen security of passenger rail systems.  This could include the use of dogs to detect improvised explosive devices. 

Also, and most important, the number of canine teams certified by the Transportation Security Administration is to be increased by 200, with $75,000 to be provided for each canine team deployed, requiring an appropriation of $15 million.  Specifically, the bill would require expanding “the use of canine teams trained to detect vapor wave trails in passenger rail and public transportation security environments….”

The Comptroller General is to submit a report to Congress on “the capacity of the national explosive detection canine team program as a whole.” The bill was introduced by Democratic Representative Sheila Lee of Texas, who also introduced House Resolution 28 (January 7, 2011), which encourages TSA to “continue development of the National Explosives Detection Team Program, which has proven to be an effective tool in securing against explosives threats to our Nation’s rail and mass transit systems, with particular attention to the application of its training standards and the establishment of a reliable source of domestically bred canines.” 

This may in part be a reference to the fact that the most popular breed at the moment for bomb dog work is the Belgian Malinois, and some agencies prefer to get them from European breeders. This is largely driven by economics because many imported dogs have already undergone significant training, which can include basic obedience, tracking, apprehension and attack work, and even detection training.  Starting with this level of training often saves the training companies a great deal of expense.  The intent of the legislation is appropriate, but at least in the short term it is likely to result in additional expense for some acquiring agencies. 

H.R. 1299, the Secure Border Act of 2011, would require the Secretary of Homeland Security to report to Congress the “number of canine and agricultural officers assigned” to each port of entry.  Within six months of enactment, the Secretary of Homeland Security would be required to “develop metrics to measure the effectiveness of security at ports of entry, which shall consider … [t]he required number of … Canine Enforcement Officers necessary to achieve operational control at such ports of entry.”  The bill was introduced by Republican Representative Candice Miller of Michigan, whose district abuts Canada.

H.R. 3011, the Transportation Security Administration Authorization Act of 2011, has provisions regarding explosive detection canine teams for aviation and air cargo security.  The bill provides that the Assistant Secretary of Homeland Security “shall ensure that by the end of 2013 at least 100 explosives detection canine teams are used for passenger screening purposes at large airports in the United States….”  The dogs can be used “to resolve screening anomalies,” such as something suspicious detected during a full-body scan. The bill authorizes the appropriation of $25 million for this purpose. 

In providing for air cargo security, the bill specifically provides for leveraging “third-party explosives detection canine assets … for screening air cargo that can be used by air carriers, foreign air carriers, freight forwarders, and shippers and that meet certification standards of the Administration, as determined by the Assistant Secretary.”  A third-part explosives detection canine asset is “any explosives detection canine or handler that is not owned or employed by the Administration.” 

For mass transit systems, the number of canine teams certified by TSA is to be increased by “not less than 200 canine teams,” with $75,000 in assistance to be provided for each team.  The bill specifies that TSA must “expand the use of canine teams trained to detect explosives based on methods other than traditional explosives detection training techniques.” It is not clear whether this is a reference to vapor wake detection, but it is to be noted that the bill was introduced by Republican Representative Mike D. Waters of Alabama, whose district includes Auburn University, where vapor wake detection research is a priority and a source of revenue.   

Research is also contemplated and $1 million is appropriated for two years so that “the Assistant Secretary, in coordination with the Under Secretary of Homeland Security for Science and Technology, shall develop and implement a basic research and applied research and development program for the purpose of advancing the scientific understanding and applicability of canine explosives detection assets in the transportation environment.”  Auburn would have to be regarded as a good candidate for such a grant, but there are others. 

H.R. 4103, the Canine Members of the Armed Forces Act, would provide that the Secretary of Defense is to classify military working dogs as canine members of the armed forces, and not as equipment.  If a dog reaches the age of retirement and it has not been adopted, it is to be transferred to the 341^st Training Squadron.  Veterinary care is to be provided to retired military working dogs.  The bill was introduced by Republican Representative Walter B. Jones of North Carolina.  S. 2134 is the Senate version of this proposal.

This is a good idea, though it only has 12 sponsors at the moment.  Also, it does not protect contract working dogs on retirement. Rumors I have been unable to substantiate suggest the possibility that some current contractors are making little or no effort to redeploy older dogs or those that fail certifications, or allow them to enjoy any retirement whatsoever.

S. 722, introduced by Senator Lieberman of Connecticut, the Secure Facilities Act of 2011, provides that the Director of the Federal Protective Service is to increase by up to 15 canine teams the number of infrastructure security canine teams.  This increase could be achieved by one of three possible means:

“(A) partnering with the Customs and Border Protection Canine Enforcement Program and the Canine Training Center Front Royal, the Transportation Security Administration's National Explosives Detection Canine Team Training Center, or other offices or agencies within the Department with established canine training programs;

(B) partnering with agencies, State or local government agencies, nonprofit organizations, universities, or the private sector to increase the training capacity for canine detection teams; or

(C) procuring explosives detection canines trained by nonprofit organizations, universities, or the private sector, if the canines are trained in a manner consistent with the standards and requirements developed under subsection (b) or other criteria developed by the Secretary.”

Criteria for infrastructure security canine teams may involve standards set by private sector programs.  Unlike some other proposals, this one does not try to avoid use of federal training facilities. 

Proposals Regarding Veterans

H.R. 943, the K-9 Companion Corps Act, would provide funds to non-profit organizations for “planning, designing, establishing, and operating programs to provide assistance dogs to covered members and veterans.”  The proposal contemplates that assistance dogs would be provided to veterans suffering from:

(A) Blindness or visual impairment.

(B) Loss of use of a limb, paralysis, or other significant mobility issues.

(C) Loss of hearing.

(D) Traumatic brain injury.

(E) Post-traumatic stress disorder.

(F) Any other disability that the Secretary of Defense and the Secretary of Veterans Affairs consider appropriate.

Organizations applying for grant money would have be required to have “recognized expertise” in breeding and training assistance dogs, and would have to describe their experience in “working with military medical treatment facilities or medical facilities of the Department of Veterans Affairs.”  An assistance dog is defined as “a dog specially trained to perform physical tasks to mitigate the effects of” one of the disabilities listed above.  The dogs would be provided to active members of the military receiving “medical treatment, recuperation, or therapy,” and to veterans receiving treatment.  Up to $5 million would be authorized for this program.  The bill was introduced by Democratic Congresswoman Mazie Keio Hirono of Hawaii. 

The Congresswoman may have been influenced by some organizations whose philosophy is that service animals should perform tasks and cannot qualify as such if they only “do work,” as accepted in Department of Justice regulations defining “service animal.”  On the other hand, the language in the proposal may only be designed to preclude the use of funds for emotional support animals.  The bill has attracted 23 cosponsors, indicating some traction, though probably not enough to advance in the current session. 

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012 (PL 112-81), which has become law, contains a provision that allows the Defense Department to make available to a deceased handler’s family the military working dog which he had handled.  The dog may be given to a parent, child, spouse, or sibling of the deceased handler.  MWDs may also be given to their wounded handlers if the Department determines to do so, but if the handler is alive, the dog may not be given to a family member.  

H.R. 2074, the Veterans Sexual Assault Prevention and Health Care Enhancement Act, would require the Secretary of Veterans Affairs to implement a three-year pilot program to assess the effectiveness of using dog training activities as a component of integrated post-deployment mental health and PTSD rehabilitation programs offered by the VA. 

The Secretary is to select a VA medical center for this program, which cannot be in the VA Palo Alto health care system. In designing the program, recommendations published by Assistance Dogs International, the International Guide Dog Federation, “or comparably recognized experts in the art and science of basic dog training with regard to space, equipments, and methodologies.”  Partnerships are to be established with these two programs, as well as “academic affiliates, or organizations with equivalent credentials with experience in teaching others to train service dogs….” It is not clear who will determine what experts are “comparably recognized” or what organizations have “equivalent credentials.”  Since the VA is looking to the external organizations for guidance, it would presumably be up to those organizations to acknowledge who belongs in their class.  One wonders if anyone not directly affiliated would be found to be so.  Temperament criteria for dogs are to be taken from ADI and IGDF.  The legislation was introduced by Republican Representative Ann Marie Buerkle of New York.  The Senate version of this proposal is S. 1838.

H.R. 198, the Veterans Dog Training Therapy Act, was discussed in a prior blog.  The bill has acquired 98 sponsors but has been stuck in the Committee of Veterans Affairs for over a year. 

General Proposals

S. 707, the Puppy Uniform Protection and Safety Act, provides that the Secretary of Agriculture is to promulgate standards for dealers “that include requirements for the exercise of dogs at facilities owned or operated by a dealer.”  The rules would apply to all dogs at least 12 weeks old, and is not to include “forced activity (other than a forced activity used for veterinary treatment) or other physical activity that is repetitive, restrictive of other activities, solitary, and goal-oriented.”  The area provided for such exercise is to be “separate from the primary enclosure if the primary enclosure does not provide sufficient space to achieve a running stride,” and is to be sufficiently large for dogs to get exercise, i.e., to run around a bit. Certain kinds of flooring that would be unsafe for dogs are to be prohibited.  State laws that provide additional or greater protections for dogs are not preempted.  The bill was introduced by Republican Representative Jim Gerlach of Pennsylvania. 

H.R. 2256, the Pet Safety and Protection Act of 2011, is designed “to ensure that all dogs and cats used by research facilities are obtained legally.”  Dogs and cats used in research must be obtained from a dealer, a pound or shelter, a person who bred and raised the animal or owned it for at least a year, and certain research facilities. This would apparently preclude people from rounding up their neighbors’ pets and donating them to research facilities, though if someone claimed to have had the animal for more than a year, it is not certain how the lie would be determined.  It appears to be well intended.  The bill was introduced by Republican Representative Michael F. Doyle of Pennsylvania.     

H.R. 1878, which would give public transportation access to trainers of service dogs, was discussed in a prior blog. 

Conclusion

Big winners, if legislative proposals before Congress were enacted, would be Auburn University’s trademarked vapor wake detection system (H.R. 1900, probably H.R. 3011, though the latter may be beneficial to a broader range of private institutions), and Assistance Dogs International and the International Guide Dog Federation (H.R. 943, H.R. 2074, S. 1838).  

I should note that I have the greatest respect for the latter two organizations, but delegating governmental responsibilities to umbrella organizations is too easy a way for government to avoid responsibilities altogether.  Also, with respect to non-guide service dogs, the Army, VA, and now Representative Buerkle, seem not to want to see that the umbrella is not broad enough to cover those with a great need for service animals.  

I also have great respect for Auburn University’s canine research, but like my father (who was an agricultural scientist) and my uncle (who spent most of his life in the Agronomy Department at Auburn), I am suspicious of the commercialization of research results.  Since it can bias the research, there should be an independent evaluation of the research and the validity of its commercial application.  That evaluation should not merely be a summary of field reports from handlers whose claims are necessarily biased by the fact that their employment depends on the success of an approach. 

Big losers, if some of the Bills become law, would be canine training programs already developed by the military and active-duty Army personnel and veterans who cannot get access to assistance dogs through channels approved by the military and the VA.  Dogs in general would benefit from exercise requirements placed on dealers, and limitations on the sources of animals for research, but a question that would remain open some time will be the level of enforcement that can be implemented by the Department of Agriculture, something discussed previously. 

H.R. 1540, allowing wounded handlers or the families of deceased handlers to obtain the military working dogs is now law (10 U.S.C. 2583).  Time will tell how many handlers and families are able to get dogs, since the military must approve a transfer.  Certainly dogs nearing the end of their useful lives should not present issues for the military, and giving a dog to a family that has lost a member will be some comfort that should not be denied. A similar requirement should be considered for contract working dogs.   

Overall, the proposed legislation, most of which will go nowhere in this election year, shows a trend towards privatizing canine responsibilities and activities.  Although this may be cost-effective, it comes with the price that neither the government nor the public will necessarily know very much about the implementation of a program, and Congress will effectively delegate oversight, at least until some flaw in a program blows up in a public manner.    

Thanks to L.E. Papet and Debbie Kandoll for thoughts on a draft of this blog. 

Tracking Dog’s Alert Helps Convict, but Should It Have Been Accepted as an Identification?

When the U.S. Supreme Court hears arguments in Harris v. Florida (Docket No. 11-817) this fall, it is likely to determine whether training and certification are sufficient to establish a drug dog’s reliability for a search of a vehicle.  The Florida Supreme Court determined that the prosecution had to produce the dog’s field records and had the burden of establishing probable cause. 

In a recent California case, the tracking and alert of an uncertified tracking dog that would probably not have met the reliability standard required of a detection dog in Florida was admitted to establish the identity of the perpetrator in a murder.  Although the U.S. Supreme Court will not consider a tracking case, its pronouncements regarding training, certification, field records, and the evidentiary burden to establish reliability are likely to affect future decisions in cases such as the one we analyze here.

A Murder in Southern California

Carlos C. was shot and killed as he rode on his skateboard in Ontario, California, the evening of November 6, 2008.  The shooter was described as a black man wearing a hooded sweatshirt and khaki shorts.  Officer Louis Mena was the first to arrive, finding Carlos alive but not responsive.  He was pronounced dead in a hospital emergency room a short time later.  He had been shot twice in the back. 

               

One witness, Jair Monares, who had encountered Kevin Tyron Stanford shortly before the shooting, described Stanford pulling a gun on him and shooting it in the air.  Monares picked Stanford out of a lineup and testified that he had seen Stanford wearing a hoodie and shorts.  Another witness, Maricela Sierra, heard someone yell “Black Crips” and went out from the laundry room of her apartment where she saw a black man wearing a hoodie and khaki shorts chasing someone riding a bicycle. 

               

A third witness, Raul Ramirez, was riding his bicycle when he heard gunshots and then encountered the defendant, whom he identified at trial.  Stanford apparently said to Ramirez, “What the hell are you looking at fuckin’ Mexican.  Go back to Mexico, fuckin’ wetback.”  Ramirez rode off but Stanford chased him.  The bicycle’s chain derailed and Ramirez fell against the curb.  Stanford took the bicycle and fled.  Maricela Sierra, having caught up with Ramirez, helped him describe events to the 911 operator. 

               

A fourth witness, Jessica Villalobos, who happened to be Jair Monares’s girlfriend, saw a black man from the second floor apartment where she lived, then later heard gunshots after which she saw a body on the sidewalk and a skateboard rolling down the street.  She saw the defendant pick up the bicycle and head towards a church.  She called Monares, who left his house and saw Stanford for a second time, though this time Stanford did not look at or speak to him. 

Ava Stone was returning to the apartment which she shared with a number of people at about 7:30 when she was stopped by a police officer, who told her that a suspect in a murder had been seen entering her apartment.  The officer asked her to have all males in the apartment over 18 years old come outside.  The defendant was in a bathroom and ignored her request, so she and another man told the police.  The defendant came out after taking a shower and changing his clothes. 

Monares and Ramirez were brought by the police to the area. Monares recognized and identified the defendant as the person he had twice seen as events unfolded. While Ramirez recognized the defendant, he was too afraid to make a formal identification at that time. The Ontario police also brought a bloodhound, which followed a path from the place where Ramirez’s bicycle had been abandoned to the defendant as he stood in a group of about six black men.  

K-9 Willow and Officer Rivera

Willow was a purebred bloodhound that had been acquired by the Pomona Police Department two years before the incident.  Willow’s handler was Officer Cesar Rivera, who had been a K-9 handler for 14 years.  Before Willow, Rivera had handled two Belgian Malinois, both trained in patrol work and narcotics detection.  Rivera had in fact written the proposal for the police department to acquire a bloodhound.  Further details concerning Rivera and Willow were described by the court in summarizing Rivera’s testimony:

“[The] Pomona Police Department obtained Willow from a foundation in Florida that has a training facility in Georgia. Willow had been trained to track for almost a year by a trainer at the foundation and had also been used in the field by law enforcement agencies before Pomona Police Department acquired her. In her work for the other law enforcement agencies, Willow had done approximately six or seven finds, i.e., where she actually tracked and located someone. Rivera trained with Willow at the Georgia facility for a week before bringing her back to Pomona. Rivera described the training, which involved the use of a training track and keeping a log of the dog's performance. After he brought Willow back to Pomona from Georgia, Rivera spent two to four hours a day for two months training her to do hard surface tracking before putting her in the field. Rivera kept logs and only put Willow out into the field when ‘she was very reliable where she actually stayed on the track and located the decoy.’”

It is clear the dog received training prior to being acquired and brought to California. The prior training and use of the dog by other law enforcement agencies should have been explored as it might have indicated problems which caused the other agencies to return the dog to the foundation.    

Curiously, Rivera apparently testified that there is no test or certification for bloodhounds. This is incorrect since a number of organizations have testing and certification programs for tracking dogs. See, e.g., the National Police Bloodhound Association. The intent may have been to state that the police department itself had no formal program.  Rivera acknowledged that Willow had bad days—he said about 5% of the time—when she did not perform well. Rivera provided Willow’s training logs to the defense.

Rivera described how Willow works:

“Rivera described for the court how he gets Willow to track, a process that involves taking her to where the subject was last seen, having her sniff an object that contains the subject's scent, and then telling her to ‘go find him.’ Willow then sniffs around, finds the direction of travel, and ‘once she finds the direction of travel, then she's on the go, she's tracking.’ Rivera trains Willow every day he works with her, which is about 16 hours each month, and once a year he goes back to Florida to meet with other handlers and exchange information.”

It was not clear what was in the records Rivera kept of these daily training sessions.  If they involved tracking of volunteers, more information about the team’s skills could have been obtained from them.

Willow at the Crime Scene

Rivera took Willow to Ramirez’s bicycle, which had been left near a church.  Rivera had Willow sniff Ramirez so as to eliminate him as a tracking subject, a procedure called “the missing member,” which is described in Police and Military Dogs, Chapter 5: Scenting to Items or Locations with Odors of Multiple Individuals.  (We note that one expert described the procedure as “not wholly reliable”.)

The court described Willow’s actions in the investigation as follows:

               

“Willow sniffed various parts of the bike, and then proceeded on her own track. Willow followed her nose through a hole in the brick wall between the alley and the church, down the alley to Parkside, through Stone's apartment complex, and straight to six or seven men who were lined up in the middle of the street, shoulder to shoulder. After sniffing each of the men, Willow sat down in front of defendant, which Rivera explained means she had matched the scent she picked up from the bike with defendant. Officer Rivera walked Willow away from the area briefly while the men moved to stand in different positions. Rivera then returned with Willow and gave her the command to go find him. Willow again sniffed each person and alerted on defendant by sitting down behind him.”

It is to be noted that Willow had not followed Stanford's path exactly, since he had gone into the building where he took a shower and changed his clothes. 

Optimal scent lineup design often specifies that different foils should be used in separate lineups, since a situation such as the one described here, occurring moments after the initial identification, is likely to produce the same result, perhaps because of some attractiveness of the person alerted to that may be unrelated to the scent of the trail. 

No mention was made of research that has indicated that dogs may be more accurate when following a trail than when identifying an individual at the end of the trail.  In an experiment conducted near Phoenix, dogs followed the correct trail from a test site where an improvised explosive device was detonated to the area where the person who “set” the device was standing, but in several trials the dogs then identified the wrong individual.  (See Police and Military Dogs, Chapter 5: Is Trailing More Successful than Identification?; also see prior blog regarding the research.)

Court Rejects Application of Standard for Admission of Scientific Evidence

The defense attacked the introduction of the canine testimony by asserting that it did not meet requisite scientific standards under California v. Kelly, 17 Cal.3d 24 (1976) (California adheres to the somewhat more difficult but now superseded federal standard enunciated in Frye v. U.S., 293 F. 1013 (D.C.Cir. 1923), rather than the looser standard adopted by the U.S. Supreme Court in 1993 in Daubert v. Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).)  The court rejected the argument, as California courts have before, saying that dog tracking evidence did not involve a scientific technique subject to Kelly. The California appellate court acknowledged that scientific validity might have been required had the police used a scent transfer unit to place the scent given the dog on a pad. Although not a lineup, the court states to “the process by which Willow identified defendant involved tracking or trailing,” meaning that the selection of Stanford in the group fits within a procedure sometimes referred to as a “station identification.”   

We have previously described a tracking case where tracking law was strained to cover a station identification by a California Court, essentially tracking law to a poorly constructed scent lineup.  The court here perhaps assumed that an identification based on all the scents emanating from an individual at the end of the track would be more accurate than an identification based on matching specific scents left on objects that a criminal may have held.  Yet even in highly controlled scent lineups, experienced dogs can pick a foil over the target.  The risks are even greater with a lineup of people as opposed to a scent-matching procedure.  Generally speaking, European scent lineup technology has long rejected the use of lineups of individuals.  As noted in Police and Military Dogs, one Dutch researcher writing as far back as 1936 stated:

“It is still more dangerous to let a dog choose a person out of a row of people on the score of the odour of an object offered to the dog. Even if the trainer knows nothing about the test, and has himself no suspicion of anybody, there still remains the possibility, by no means a light one, that the dog may respond to the faintest movement of one of those persons.” 

In other words, cueing inducing an alert could come from behavior exhibited by the handler, the suspect, or another person present and visible to the dog.

Further, the description of the tracking does not specify the length of the track involved, which has been found to correlate with the accuracy of an identification at the end of the track.  (See Chapter 4: Length of the Trail, noting that the longer the trail, the more likely the dog would not follow a decoy who had been walking with the target when the two people separated and left separate trails.) 

Foundation for Admission of Tracking Evidence Deemed Satisfied

The court here cited the necessary elements for tracking or trailing evidence to be admissible:

(1) the dog's handler was qualified by training and experience to use the dog;

(2) the dog was adequately trained in tracking humans;

(3) the dog has been found to be reliable in tracking humans;

(4) the dog was placed on the track where circumstances indicated the guilty party to have been; and

(5) the trail had not become stale or contaminated.

Since the court determined that this foundation had been established, “the trial court did not abuse its discretion by admitting evidence that Willow tracked defendant from the bicycle to where defendant stood in a group of men.”  It is not clear whether Rivera knew who Stanford was.  Although it might be assumed based on the court’s description of when he and the dog arrived that no one had identified Stanford to him, or described Stanford in sufficient detail for him to make the identification himself, it is not clear that this issue was investigated in cross-examination or otherwise.  If Rivera had knowledge that could have allowed him to deduce who Stanford was in the group, the risk of cueing by the handler is significant. 

Reliability of the Canine Team

Defense counsel attacked Willow’s reliability:

“[D]efendant first cites the purported absence of a log documenting Willow's success rate. In defendant's view, the ‘hundreds of pages of reports’ Officer Rivera produced did not constitute a ‘log’ and therefore did not establish Willow's reliability in tracking humans. Defendant concedes that Officer Rivera testified to Willow's reliability, i.e., she is on the mark 95 percent of the time. If, as defendant contends, that figure was a “guestimate” on the part of the officer, that is a circumstance that goes to the weight the jury should give the tracking evidence, but it does not affect the admissibility of the evidence.”

It is not clear if the hundreds of reports could have been distilled by defense counsel into intelligible evidence, or if counsel even attempted to do so.  It may be supposed that this was either impossible or not done since an accurate success rate would have obviated the need for a “guestimate” and allowed inquiry into questions such as how many trails went cold and how often the dog alerted when encountering an individual at the end of the trail.  If the materials could not answer such questions, it must be questioned whether reliability was in fact established.   

The defense also argued that the tracking evidence was inadmissible because Rivera had no formal training.  This too the court rejected:

“Although defendant takes issue with the extent of that training, he does not identify the specific deficiencies or recount the additional training Officer Rivera should have had in order for the tracking evidence to be admissible. Defendant also claims that the absence of licensing or certification affects the validity of Officer Rivera's testimony regarding Willow's reliability because Willow's performance has not been independently evaluated. Defendant's claim assumes that if a licensing organization existed, it would require independent assessment. The claimed deficiencies, if any, go to the weight of the evidence and not whether it is relevant and therefore admissible.”

Again, the implication is that independent testing is unavailable, which is not the case.  Also, it seems as though the burden of establishing the dog’s reliability did not lie with the prosecution, but rather that the defense had to establish that the dog was not reliable.  (In Harris, which the U.S. Supreme Court will consider, the State of Florida asserts in its appeal that the court placed “an excessive evidentiary burden” on the prosecution, by requiring the production of a dog’s field activity reports. Curiously, the State of Florida’s brief in Harris notes that “California courts do not require evidence of a dog’s success rate in the field to establish probable cause.”)    

The defense apparently argued that Willow had been used to find lost children and that this was not the same as tracking a criminal.  More needs to be known about the team’s work to judge the level of her tracking skills in situations such as was presented during the investigation here.   

The defense was grasping at straws in arguing that there was no other evidence that the defendant had gone through the brick wall.  The prosecution was required to demonstrate that the dog was placed on the track where evidence indicates the target had been—here, the place where the bicycle was abandoned.  It is not necessary to show that every place along the trail followed could be established by other evidence than the path the dog took.  That the dog went to the group of men rather than to the apartment where the defendant had been for some time may indicate that the defendant had created a cross-track somewhere outside the apartment, which the dog followed as having the stronger or most recent scent, but as with a hunting dog, a tracking dog may follow the stag after it crosses over its initial trail. In a station identification, the tracking dog usually resumes tracking at the station because the scent it has been given is again detected and the dog follows the scent to an individual and alerts as an identification. 

Having rejected other challenges, the court affirmed the murder conviction.

Conclusion

Science will out in the end, though it may take a long time.  We are not arguing that a Frye or Daubert hearing should be held to admit tracking evidence, but we are saying that the foundation should be established before the jury hears about the tracking and that scientific research can inform the analysis of the foundational requirements.  It is not clear from the court’s description if the dog was adequately trained or if it is a reliable tracker. Thus, at least two out of the five foundational elements are in serious question.  Also, the dog’s reliability in scent identification was not even alluded to and the dog’s alert, though generally admissible under American law, should have been acknowledged as perhaps due to other factors than a matching of scents.   

When the U.S. Supreme Court hears Harris this fall, it may consider why training and testing records for some drug dogs demonstrate much higher accuracy than field records.  The mantra that too many handlers repeat about residual odor cannot hide the fact that U.S. Supreme Court precedent has given narcotics canine handlers the power to support searches of luggage with minimal and cars without reasonable suspicion, providing a means of acting on a hunch.  Similarly, poorly designed and implemented scent identification procedures provide an identification that can be introduced with minimal corroboration.  If that identification occurs under a procedure that does not have a high probability of producing an accurate result, as has happened with almost all judicially described American scent lineups, then a court which approves such a procedure provides a fallback for getting a conviction when other evidence is lacking or disappears before it can be presented to the jury. 

This case amounts to a sort of station identification, though it did not take place in a police station.  It would not have been acceptable evidence in the Netherlands, where even much more rigorously controlled and scientifically supportable scent identifications are no longer deemed acceptable evidence. (For the history of this, see Ruud Haak, K9 Fraud!)  Nevertheless, with requirements of corroboration, and cautions to juries about limited value, such identifications have a long tradition of being admissible in American courts.

There was a good deal of eyewitness testimony in the prosecution of Kevin Tyron Stanford and the canine identification, even if improperly admitted, was only one of a number of identifications and could probably be termed harmless error.  Therefore, though not without serious flaws, and certainly not elegant, the decision probably reached the correct result. 

Regardless of how the Supreme Court rules in Harris, its thinking regarding training, certification, the keeping of field records, and the placement of evidentiary burdens in canine narcotics detection cases, will only be dictum for a court considering facts like those presented in this California case.  Nevertheless, the high Court’s reasoning will provide grist for judicial mills across the country and a decision such as California v. Stanford may not be made under precisely the same logic in the future. 

California v. Stanford, 2012 WL 1365744 (Ct. App. 2012)

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

Scent ID Dogs Found More Accurate in Scent Lineups of Women than of Men

Research in which I participated appears in the May 2012 issue of the Journal of Forensic Sciences. The lead researcher was Tadeusz Jezierski of the Polish Academy of Sciences, Department of Animal Behavior, who is a co-author of two chapters in Police and Military Dogs which deal with scent identification and scent lineups. I am constrained by contract from covering this development at the level I probably would had I not been a co-author, but a brief reference is appropriate. The research concluded that dogs in controlled trials more accurately distinguished the hand odors of women than the hand odors of men. If the target odor, the scent that the dog was supposed to match, was that of a man, the dogs were more likely to falsely alert to another man than was the case if the target odor was that of a woman. Also, in single-gender lineups, when all the odors were those of men or those of women, dogs were more likely to pick the correct woman than the correct man in a lineup. We note that the ability to identify individual women's hand odors better than men's may be due to gender differences in chemical compounds or due to a greater "attractiveness" of human female odors. As we discussed in Police and Military Dogs, scent identification of women is less common than that of men, but lawyers and expert witnesses in cases where the conduct of a scent lineup is in issue may find the research helpful in developing certain positions at trial or on appeal.

Jezierski, T., Sobczyńska, M., Walczak, M., Gorecka-Bruzda, M., and Ensminger, J. (2012). Do Trained Dogs Discriminate Individual body Odors of Women Better than Those of Men? Journal of Forensic Sciences, 57(3), 647-653, May 2012 (DOI: 10.1111/j.1556-4029.2011.02029.x).

Bed Bug Beagle Dispute Lands in Federal Court

Dixie is a beagle trained to detect bed bugs.  Dixie is owned by Western Industries-North, LLP, which provides pest detection and removal services in the mid-Atlantic region. Western got into the canine bed bug detection business in 2009 by acquiring Dixie, who was purchased from trainers in Florida for $10,400.  After getting Dixie, Western expanded its bed bug business by buying new dogs and hiring new handlers. by January 2012, Western owned four scent dogs and employed four handlers. 

Lessard Hired as Handler

A month after acquiring Dixie, Western hired Blaine Lessard to be Dixie’s handler. Lessard signed an employment agreement in which he agreed, upon termination of his employment for any reason, to return to Western “all such equipment and property” that had come into his possession by reason of his employment.  The agreement also contained non-solicitation and non-compete provisions, which prohibited Lessard from soliciting business from Western’s customers for two years.  He could also not set up a competing business in the same counties in which he worked for Western for two years after a termination of his employment. 

Moonlighting was also prohibited in an employee handbook that stated: “Employees are not allowed to work for another pest control or fumigation firm or to be in business for themselves in the pest control or fumigation business.”  Violation of this provision could result in immediate termination. 

Lessard received $50 each month for boarding Dixie, though Lessard claimed he never received this amount and, in any event, it was insufficient for the expenses involved.  Western promoted its business through media placements featuring both Dixie and Lessard. Dixie brought in about $100,000 a year for two years.  While working for Western, Lessard became familiar with the company’s pricing models for bed bug detection services, as well as learning who Western’s bed bug customers were and what problems they were having. 

Dixie and Lessard became local celebrities in southern Maryland. See the May 15, 2009, article posted by Southern Maryland Newspapers Online

Lessard’s Moonlighting

In November 2011, Western learned that Lessard was using Dixie to provide bed bug detection services for his own customers.  Western found this out because Lessard inadvertently faxed a worksheet to Western’s office which revealed that, on a day Lessard had taken off from work, he had gone to Pennsylvania to provide bed bug detection services for a business that was not a Western customer. 

In February 2012, Western discovered a website for a competing canine bed bug detection company with the name of American Canine Scent Detection, which featured Lessard and Dixie and cited their extensive experience.  The website said that American provides bed bug detection services to hotels, motels, hospitals, senior homes, apartments, theaters, and offices.  The website also claims that American “has searched over 70,000 rooms on the east coast from Manhattan to Virginia Beach.” Lessard also had a Linked-in page stating that Lessard was a Master Canine Handler and Trainer with American Canine Scent Detection. Lessard’s wife had registered American Canine Scent Detection as a trade name in late 2010. 

Western determined to terminate Lessard’s employment and recover Dixie.  Lessard refused the give Dixie to Western, saying, according to the employee who terminated Lessard: “You’re not getting the dog.  There’s no way you’re gonna get the dog.”

Western Seeks TRO

On February 23, 2012, Western filed a complaint and an emergency motion for a temporary restraining order seeking the return of Dixie, to stop Lessard’s competing business, and to require that Lessard not disclose any client information in violation of his employment agreement. 

Lessard threw up a smokescreen of arguments in response to Western, claiming that the training academy in Florida transferred title to Dixie directly to him, that he paid for Dixie’s travel expenses and purchased dog supplies for her, that he provided additional training and kept Dixie’s testing and certifications up to date.  Lastly, he claimed that Dixie was a rescue dog of no value, and that Western had abandoned her to Lessard’s care.  He asserted that the $10,400 paid to the Florida training academy was for training services and not for Dixie. 

The federal district court rejected all these claims, and concluded that Western’s breach of contract claim will likely succeed on the merits.  The court concluded that Western “will clearly lose future business so long as Defendants [Lessard and his wife] continue to hold Dixie.  Thus, mandatory injunctive relief was deemed appropriate.  Lessard was ordered to return the dog and to cease operating his competitive business. 

Conclusion

As one of the most lucrative detection dogs in the private sphere, it can be expected that disputes and lawsuits will arise regarding their use.  The case appears to be one of an employee who understood his employment contract to be a pile of meaningless boiler plate which did not really apply to him.  He may have even convinced himself that the relationship he no doubt developed with Dixie superseded any limitations imposed under his contract with Western.  The fact that Lessard created a website his employer was likely to find sooner rather than later may indicate that he actually believed that he owned Dixie. 

The law appears to have been a minor headache to Lessard.  Western was justified in making it into a major headache for him.  My only concern is Dixie, who probably became accustomed to Lessard’s companionship.  Unfortunately, dogs rarely get to choose their owners, or handlers.

Western Industries-North, LLP v. Lessard, Docket No. 1:12cv177, 2012 WL 859459 (E.D. Va. 2012)

Thanks to L.E. Papet for suggestions.  

Base Commanders Begin Implementing Restrictive Army Policy on Service Animals

Additional Notes.  In an early revision to this blog, I had added a comment that in the April-June 2012 U.S. Army Medical Department Journal, Lieutenant Commander Kathleen L. Watkins of the U.S. Public Health Service states that "the US Army Veterinary Command, the DoD Executive Agent for Veterinary Services, is in the process of revising TBMED 4.  The revision will include current definitions for animal-assisted activities, animal-assisted therapy, and service dogs."  A revision of TBMED 4 was posted on August 3, 2015.  This, and other developments, will be the subject of a forthcoming blog.  

The U.S. Army policy on service animals, which I described in a prior blog as a poorly considered adaptation of the VA’s poorly considered, though somewhat harmless, service animal policy, is now rippling down the command and across military bases in the United States.  I have been able to review the policies of Fort Campbell and Fort Bliss.

Fort Campbell

On February 21, the Commanding Officer of Fort Campbell, Kentucky, issued a memorandum on service animals at his base, adapting Policy Memo 12-005, issued three weeks earlier.  The Fort Campbell policy reiterates the Army’s contention that the Americans with Disabilities Act is not binding on military but will be followed to the extent practicable.  Here, as with the general policy, the statement does not ring true to anyone who has the slightest familiarity with the ADA.

William G. Howard, the Commanding Officer at Fort Campbell, states:

“This policy provides guidance regarding ownership and accompaniment of animals while attached or assigned to Fort Campbell, KY (FTCKY) WTB [Warrior Transition Battalion] regardless of location.  While each situation will be evaluated on a case-by-case basis, individuals attached or assigned to the WTB, will not be approved for a service animal until the Soldier reaches their highest level of independence and is living off post.”

This makes the curious assumption that the soldier can reach his or her highest level of independence without a service animal in the first place.  The memo says that soldiers residing at medical treatment facilities or on-base members of the base’s Warrior Transition Battalion will not be approved for a service animal “until they have achieved a sufficient level of independence to reside off post in private housing.”  Thus, the memo assumes that a service animal—even in the unnaturally narrow definition the Army is now giving the term—is not to be considered part of a treatment regimen.  It may be that the Army feels that occasional visits from therapy dogs are all that wounded soldiers should expect in early recuperative phases.  The memo elaborates:

“A service animal issued prematurely may not be appropriate since a Soldier’s functional needs may change throughout the rehabilitation process.”  Further, soldiers “in the initial phase of rehab may not be able to provide the daily care a service animal[‘s] needs.”  But they may be, so the fact that the statement is true for some becomes true for all. (Perhaps I should note here that the memo is full of grammatical errors, some of which I have taken the liberty of correcting in quotations here so as to make passages more understandable.)

The memo insists that a soldier’s superiors should not be required to take care of a service animal if the soldier returns to inpatient status or declines “in mental status.”  It does not seem to matter that returning to inpatient status or declining in mental status may be increased because a soldier cannot have a service animal. 

The memo requires that soldiers “must have command approval in order to obtain a service animal.”  Approval must also come from a multi-disciplinary team led by the soldier’s primary care manager.  Policy Memo 12-005 had described this team as also “ideally” including other healthcare professions, behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and warrior transition unit staff. 

If this gaggle of officials and professionals agree that the soldier can have a service dog, then he must receive “requisite orientation and training from approved providing/procurement organizations prior to taking possession of a service dog.”  This means the soldier must receive training in use of a service dog from an organization approved by the International Guide Dog Federation (for a guide dog) or by Assistance Dogs International (for “other service, assistance, or alert dogs”).

The Warrior Transition Battalion is not responsible for procuring service animals, so an “[a]ccredited private service animal organization will be permitted to provide service animals on a voluntary basis.”  Organizations not approved by the International Guide Dog Federation or Assistance Dogs International will thus not be permitted to provide service animals, whether on a voluntary basis or otherwise.  

Fort Bliss

On April 4, Major General Dana J. Pittard, Commanding, issued a memo entitled Command Policy Letter #9, Guidance for Acquisition and Use of Service Dogs by Service Members (SMs) Assigned to Fort Bliss and William Beaumont Army Medical Center (WBAMC).  Fort Bliss is a large post covering 1,700 square miles in both New Mexico and Texas. 

The memo refers to Policy to Army Policy Memo 12-005 and tracks it more closely than the Fort Campbell memo. While acknowledging the general coverage of the ADA, it specifically mentions that service dogs “will not be allowed into public pools or their surrounding enclosed areas.”  This is presumably imposed on a fundamental alteration to the environment argument and is appropriate. It is such a specific rule, and so unique, that I suspect someone claiming to have a service dog was actually insisting on bringing it into a pool at Fort Bliss. 

The memo refers to the service member having a permanent profile with a condition that would benefit from having a service dog “as well as exhausted all other treatment modalities for that condition.  A Service Dog is considered a palliative or a treatment of ‘last resort.’”  This is explicit in rejecting service animals as being part of a treatment regimen as early as possible. 

The soldier’s Primary Care Manager is to document “at least 3 potential tasks that the Service Dog will perform mitigating specific disabilities.”  This is probably taken from Assistance Dogs International’s Minimum Standards for Training Service Dogs. It is not clear that many Primary Care Managers in the Army will have a sufficient background in the use of service animals to know what sorts of tasks would be most appropriate for a soldier.  Presumably Fort Bliss is planning some educational seminars for medical personnel that will cover such topics. 

Curiously, the three-tasks requirement is often taken as law though, in a review of federal and state service dog laws conducted by me and Fran Breitkopf several years ago, we discovered that only one state had a law that might possibly be interpreted as requiring three tasks.  The Department of Justice, in the most widely copied definition of service animal allows that though training is required, the dog can “do work or perform tasks.”  Consider, for instance, a seizure alert dog that alerts to a single condition of its master.  Nevertheless, the three-task requirement is consistent with the Army’s recognition of only entities approved by ADI, even if it flies in the face of the ADA. 

The Fort Bliss memo requires that the “annual care plan must include primary and secondary powers of attorney to designate someone to care for and assume all of the owner’s legal rights over the animal, if the owner is incapacitated or otherwise unable to care for the Service Dog.”  A microchip must be put into the dog “whether or not residing on post.”  The dog is to have an identification number on its badge that matches the microchip identification number. 

Service dogs may “be allowed access to all duty areas, to include formations.  On a case by case basis, if the presence of the Service Dog disrupts the mission, the Brigade commander can disallow the Service Dog’s presence at duty locations. All efforts should be made to find an appropriate duty location for the SM [service member] and his/her Service Dog.”  This is appropriate, and shows that the base command actually considered how service animals might co-exist with military activities. 

The memo deals with dogs that do not act like service animals:  

“Service Dogs found to be aggressive towards humans or other animals will lose their recognition from the [William Beaumont Army Medical Center Multi-Disciplinary Team] and be counseled by their unit commander on the ramifications on the loss of loss of recognition.  The Service Dog will revert to a pet status and fall under applicable post pet policies.”

Presumably, the dog could receive additional training and resume service dog status, though this is not stated.

On implementing the policy, soldiers who believe they have service dogs are to provide certain information to their treatment teams, including ADI certification and “[l]iability insurance for harm and damages caused by the dog.”  Then there is a very curious provision:

“In the situation where ADI certification is not provided, but it appears that the dog meets ADI standards, the [William Beaumont Army Medical Center Multi-Disciplinary Team], will at its discretion, grant a waiver for the ADI certification.  In this case, the [service member] and Service Dog will be required to maintain all standards described throughout this regulation.” 

This allows for the possibility that non-ADI service animals may receive official recognition, though probably only for dogs presently being used, since the approval process in the future would not come under this grandfathering provision.  Still, this is a recognition that some dogs on the base may be acting as service dogs without the specific training and certification path that will be required in the future. 

Mascots

It was pointed out to me by a reader that the Army Medical Command Policy discussed in the prior blog specifically mentioned mascots, saying that they may be maintained “for the purpose of advancing esprit de corps.” Such animals receive full medical care as government-owned animals. In a Technical Bulletin issued by Army Headquarters in 2003, DoD Human-Animal Bond Principles and Guidelines (TBMED 4), it is stated:

“Mascots, when utilized properly, can greatly enhance the functioning of individuals and groups. General Eisenhower once said of his Scottish Terrier mascots that were with him during part of World War II, ‘I especially appreciate my Scotties because they are the only “people” I can turn to without the conversation returning to the subject of war.’  Obviously, we see therapeutic relief for an individual in this instance.”

Unfortunately, the proliferation of service animal types had not happened while General Eisenhower was still alive (much less still in the Army), or this problem might not have arisen since the architect of D-Day obviously had more sense about animals than many current Army brass.  The DoD Technical Bulletin has some additional language of significance:

“Certain specialty animals are essential to the improved functioning of some military family members. These specialty animals include guide dogs for the blind, hearing dogs, and other handicap assistance and/or service animals. The military medical departments of all branches of service should provide leadership in gaining proper recognition, acceptance, and support of these animals throughout the DoD.”

This leadership appears to be lacking these days. I should note that mascots have a long and honorable tradition in American military forces, and have sometimes given their lives to our causes, which my father described in The Complete Book of Dogs.  The picture shows mascots aboard the USS Oklahoma in 1919, later sunk at Pearl Harbor.  An argument could be made that mascots were the first military therapy animals.

The link between war dogs and service dogs should perhaps receive more attention. In World War I, an ambulance dog that was injured dragging a German soldier to safety was allowed to convalesce with the soldier, and both received the Iron Cross together. The training German ambulance dogs received in the war, which included learning to guide wounded soldiers off battlefields, was adapted by members of the Society for the German Shepherd Club (Verein für Deutsche Schäferhunde) after the war to train dog guides for the blind. Dorothy Harrison Eustis, an American, began working with guide dogs in Switzerland, then brought the technique to the U.S. where she founded The Seeing Eye. In a Marshall Plan-sponsored tour of Germany after the Second World War to find ways to improve agricultural production in Europe, my father met one of the veterans who had begun using a guide dog in Potsdam after WWI.  The USDA had chosen my father as a representative because he had grown up in a German American enclave in Missouri and was relatively fluent in the language. The German veteran he met was on his fifth dog.  The veteran told my father that his fourth dog had been killed beside him by Russian shrapnel in the final days of WWII.   

Veterinary Care

In the prior blog on Army Policy 12-005, I also raised the issue of whether unapproved service animals could receive veterinary care on military bases.  The Policy instructs medical treatment facilities to “[a]ddress veterinary exams and certification, as well as guidance on reasonable precautions to ensure that an animal’s behavior and health are appropriate.”  This statement is made with respect to therapy animals.  The Policy also states that the U.S. Army Public Health Command is to “[p]rovide authorized veterinary care for privately-owned service dogs in accordance with” the Army’s policies on veterinary health services. 

Army Regulation 40-905 provides the following as to service/assistance animals:

“Service/Assistance animals owned by, and essential to, the improved function of a military family member enrolled in any of the Services’ Exceptional Family Member Programs (EFMP), or those animals belonging to veterans entitled to animals trained in the DOD AIM HI program or its civilian equivalent training organization, may be provided the same medical/surgical care as provided for DOD-owned animals. These animals include guide dogs for the blind, hearing dogs, and other assistance animals for the physically-impaired that have been trained and certified by an approved organization. However, these animals will be provided such care only as time and resources permit, and charges for supplies and services will be at the same fee schedule as for privately owned animals.”

More generally, the Regulation provides that emergency medical treatment may be provided to privately owned animals “and medical care with the emphasis on veterinary preventive medicine and diseases that present a community health threat.”  The Regulation also states that commanders are to “[c]ontrol privately owned and stray animals at large on military installations through capture, impoundment, disposal, or other physical means.”  Hopefully no commander will go to such lengths with respect to service animals that the Army does not recognize as service animals, but I wouldn’t count on it. 

National Certification

One commenter on my previous blog on this topic noted that some sort of uniformity in certification of service animals could be useful.  Fran Breitkopf and I had explored this idea in an article appearing in the Journal of Animal Law in May 2010.  We noted that it might sometimes be appropriate to acknowledge the certifications of non-governmental groups, but we warned against giving any single group a monopoly on standard setting and testing.  Assigning to one organization, even an umbrella organization, the ability to set certification standards for guide dogs as well as the ability to approve organizations that test trainers and dogs for qualification under those standards, and another organization for other service dogs, is precisely what the VA and the Army are now doing.  This cannot be justified as a cost-cutting measure since many organizations would be willing, indeed anxious, to participate, at no cost to the government, in preparing uniform thresholds for service dog certification, and also willing to develop a fair testing environment that avoids the dangers attendant in privatizing government responsibilities. Also, the Army should clearly seek input from the Department of Justice, which has considered service animal issues extensively and which has rejected any specific certification regimen, or any task-based qualification system (much less a specific number of tasks), looking instead to a functional determination of what a service animal is.     

I have been advised that once a trainer leaves an ADI member organization, the trainer retains no residual authority from ADI because of prior employment by the member organization.  That means that a number of independent and volunteer trainers working with wounded soldiers will not be qualified under the new Army policy.  So even if a trainer is following ADI standards, if he or she does not currently work for an ADI member organization, the trainer will not be able to train dogs that will be accepted by the Army for soldiers who need them.  This will force many trainers to create nonprofit organizations and apply for ADI membership, even though their training procedures will not vary if they succeed in becoming members of ADI, a multi-year process.  Federal agencies should not be able to provide such an economic benefit to a certifying organization when the Army will not be paying for the acquisition or training of service animals. 

Conclusion

I appreciate the communications I have received from various individuals affected by or concerned with the Army’s ill-conceived service animal policy. It is not clear why the Veterans Administration and the Army have gone so far in a direction that is clearly incompatible with the ADA as developed by the Department of Justice and other federal agencies.  For the Veterans Administration it appears to be primarily an issue of limited resources.  For the Army, I’d have to guess that some officials have come to believe that soldiers finding service animals for themselves will somehow lead to a breakdown of discipline among those returning from the front with physical and psychological wounds, perhaps because Army medical personnel are reluctant to admit that a service dog, or even an emotional support animal, may be the best possible adjunct to other therapies. If the issue is that some individuals are claiming that untrained pets are service animals, and such animals are aggressive or otherwise behaving inappropriately on bases, there are many less draconian ways of dealing with such situations.

Thanks to Debbie Kandoll, Jan Moury, Joan Esnayra, and Fran Breitkopf for thoughts and suggestions.