Cocaine on Currency: The Innocent Contamination Defense and Recent Forensics Research

Additional Note:  This blog was posted in 2013 and in April 2016 seems to have become of some interest again.  It has not been updated since its original posting, but there have been both legal and scientific developments.  These are discussed in three separate chapters in the forthcoming Canine Olfaction Science and Law, i.e., in Chapter 15 by Professor Leslie Shoebotham, in Chapter 17 by Professor Thomas Jourdan, and in Chapter 9 by Professor Megan Ferguson and me. 

An influential 2005 case of the Seventh Circuit, U.S. v. $30,670, 403 F.3d 448 (8th Cir. 2005), determined that a drug dog’s alert to currency could help establish a connection between the currency and illicit drug activity based on the scientific conclusion that the substance that dogs were detecting on the currency was methyl benzoate, a byproduct of cocaine undergoing hydrolysis due to moisture, and that methyl benzoate is only detectible for a short time after the currency contacts cocaine. Thus, innocently contaminated currency should not trigger a dog’s alert unless the innocent holder received the currency shortly after it was in contact with cocaine. Since this was generally a factual issue, a defendant who had held the cash for more than a few days was in trouble. (For a discussion of the history of currency sniffs, see Police and Military Dogs, Chapter 15, 207-214.)

Now the Seventh Circuit has issued a decision, which may not be the last one in a case that has been going on for 11 years, allowing for the possibility that the science that it previously accepted as definitive might actually be undermined by other research. U.S. v. Funds in the amount of $100,120, No. 11-3706 (7th Cir. 2013)

Briefcase at Chicago Train Station

On December 4, 2002, Vincent Fallon purchased a one-way ticket for a train scheduled to travel from Chicago to Seattle on December 6. Drug Enforcement Administration agents see one-way tickets as a possible indication that a passenger is a drug courier. Two agents approached Fallon after he boarded the train and began to question him. Fallon, according to one agent, was sweating and trembling, but denied that he was carrying weapons, drugs, or more than $10,000 in currency. Fallon allowed agents to search his duffle bag but declined to permit them to open his briefcase, which was locked. Fallon claimed to not have a key to open the briefcase, but admitted that it contained about $50,000, which he said was to purchase a house in Seattle. Agent Eric Romano said he was going to hold the briefcase for further investigation and directed Fallon to come with him off the train.

At the Amtrak police office, Romano called the Chicago Police Department and requested a drug-detection dog. In Fallon’s presence, Romano used a pocketknife to pry open the briefcase, and saw the bundles of currency. Fallon now said that the currency actually belonged to a third person with whom Fallon said he was going to invest in glass blowing and glass art.

Richard King, a canine officer with the Chicago Police Department arrived, and the DEA agents present told him they suspected the currency of being “narcotics transaction money.” Officer King was thus being advised that the drugs would quite likely result in an alert by his dog, precisely the situation that resulted in so many false alerts in the 2011 Davis study. Romano placed the briefcase in the roll-call room of the Amtrak police office, after which Officer King brought his drug detection dog, Deny, into the room and ordered him to search for drugs. Not surprisingly, Deny alerted to the briefcase and the DEA agents confiscated it. Deny had previously conducted drug sniffs in the roll-call room, though no illegal drugs or suspected currency had been in that room the day of this sniff.

Procedural History

The government initiated a civil forfeiture proceeding against the funds, and Fallon and another man, Nicholas Marrocco, filed a joint claim. Marrocco was the actual owner of the funds. Marrocco was not charged with any crimes and argued that the funds were the fruit of an illegal search and should be suppressed. The district court granted Marrocco’s motion, holding that the agents had had reasonable suspicion to hold the briefcase temporarily but lacked probable cause to open it prior to Deny’s alert. In 2009, the Seventh Circuit reversed, based on the inevitable discovery doctrine. U.S. v. Marrocco, 578 F.3d 627 (7th Cir. 2009).

On remand, the government filed a motion for summary judgment and Marrocco filed a motion to exclude any evidence concerning Deny’s alert to the briefcase. Marocco also requested a hearing to challenge evidence offered by the government purporting to establish that drug-dog alerts to currency demonstrate that the currency has recently been in contact with illegal drugs. The motion for a hearing was denied, and the government withdrew its motion for summary judgment but then filed another, to which Marrocco responded by arguing that drug-dog alerts to currency are generally unreliable, Deny’s training was inadequate, and the sniff was conducted in an unsound manner. Marrocco produced expert affidavits, which the government moved to strike. The district court denied the motion to strike but said that the government could challenge the expert evidence. The district court denied the government’s motion for summary judgment.

The government filed a third motion for summary judgment, arguing that the evidence established that the funds were either the proceeds of an illegal drug transaction or were intended to facilitate such a transaction, and listed four reasons that this was the case.

1. Fallon fit a drug courier profile, apparently because he bought a one-way ticket and was nervous.
2. Marrocco’s tax returns, W-2s, and deposition testimony revealed that his expenses exceeded his income for the previous four years, and that thus his legitimate sources of income were insufficient to explain the funds. It was not considered that many people have savings, and many borrow cash from relatives and friends.
3. Records and affidavit testimony from King regarding Deny’s training, certification, and past field performance proved that Deny was a reliable drug dog.
4. The methodology used in the drug sniff was sound.

In response, Marrocco argued that there were genuine issues of material fact regarding whether Marrocco had a legitimate source for the funds and the significance of Deny’s alert. The district court, however, granted the motion for summary judgment and Marrocco appealed.

Seventh Circuit Analysis

On the second appeal in the matter, the Seventh Circuit said that the government bore, under 18 U.S.C. 983(c)(1), a burden of proving by a preponderance of the evidence that the funds were either the proceeds of an illegal drug transaction or were intended to facilitate such a transaction. Under 18 U.S.C. 983(c)(3), the government had to established a substantial connection between the property to be forfeited and the criminal offense.

Marrocco argued again that there were genuine issues of material fact as to whether he had legitimately acquired the funds and whether Deny’s alert demonstrated that the currency had recently been in contact with illegal drugs. As to the first issue, the circuit court determined that the district court erred in finding as a matter of law that Marrocco could not have acquired the funds legally.

The Seventh Circuit then considered Marrocco’s argument that Deny’s alert did not establish that the funds had been in contact with illegal drugs because drug dog alerts to currency are generally unreliable, Deny’s training was inadequate, and the sniff was unsound.

Currency Contamination

Marrocco argued that significant amounts of U.S. currency are innocently contaminated with trace quantities of drugs, usually cocaine (chemically, benzoyl-methyl-ecgonine). The Seventh Circuit had accepted this argument in U.S. v $506,231 in U.S. Currency, 125 F.3d 442 (7th Cir. 1997), but had changed its position in 2005 in U.S. v. $30,670, relying largely on the research of Dr. Kenneth Furton. Dr. Furton had determined that, in the words of the current case, “drug dogs do not sniff cocaine per se, but rather methyl benzoate, which dissipates quickly.” The circuit court had thus ruled that drug dog alerts to currency are probative of illegal drug activity.

Marrocco offered the testimony of Dr. Sanford A. Angelos, a forensic chemist, who, in an affidavit, challenged the conclusions of Dr. Furton. Dr. Angelos (who died in 2011), cited a paper by Paul Waggoner, Canine Olfactory Sensitivity to Cocaine Hydrochloride and Methyl Benzoate, SPIE, 2937, 216-226, which found that drug dogs can alert to illicit cocaine samples with concentrations of methyl benzoate below their detection thresholds. Dr. Angelos also stated, according to the circuit court, “that, so long as cocaine is present on the currency, the cocaine will continue to generate methyl benzoate and thereby replenish the methyl benzoate lost to evaporation.” Dr. Angelos argued that cocaine residue can become trapped in currency and that the amounts of cocaine residue on currency assumed by Dr. Furton’s study might be incorrect. According to the court:

“The 1997 Furton study relied upon a study finding that circulated Canadian currency contained no more than 10 nanograms of cocaine. See J.C. Hudson, Analysis of Currency for Cocaine Contamination, 22 Can. Soc. Forensic Sci. J. 203–18 (1989). However, Angelos avers that other studies have found that significant amounts of circulated United States currency contain from 1 microgram (100 times as much cocaine as the Hudson study found) to over 1000 micrograms (100,000 times as much cocaine as the Hudson study found).”

Dr. Angelos noted that another of Dr. Furton’s studies dating from 1999 had posited a lower threshold at which dogs could detect methyl benzoate than had been stated in the 1997 research on which the Seventh Circuit had relied in U.S. v. $30,670 (1 to 10 micrograms in the later research, as against at least 10 micrograms in the earlier research). The circuit court noted that one study cited by Dr. Angelos might actually contradict his arguments:

“One of the studies upon which Angelos relies indicates that the amount of methyl benzoate produced will decrease over time. See Lindy E. Dejarme, et al., Formation of methyl benzoate from cocaine hydrochloride under different temperatures and humidities, 2937 Proceedings of SPIE 19, 21 (February 1997). Although we lack the advantage of expert testimony explaining this part of the study, it appears that the study found that ‘pure’ cocaine only continues to produce methyl benzoate for about 2880 minutes (that is, 48 hours) depending on the temperature and humidity conditions. If so, it is difficult to see how the Funds, which Marrocco claims to have saved from years earlier, could still be producing methyl benzoate based on cocaine that allegedly tainted the Funds before Marrocco acquired them. Further, this seems to conflict with Angelos's claim that cocaine remaining on currency for extended periods of time ‘will slowly break down and release methyl benzoate.’ Regardless, the proper interpretation of this study and the import of its findings can best be developed through expert testimony—perhaps at a Daubert hearing.”

The court did not discuss other possible sources of methyl benzoate that could have contaminated the currency Fallon was carrying, but this might be appropriate to consider in a Daubert hearing. This substance is used in many products including solvents, dye carriers, flavorings, and cosmetics, and can come from numerous sources.  If Fallon had stored certain items, such as lip balm, some sunscreen and hand creams, or enough of over 2,000 other substances in the briefcase with the cash, a possible source of transfer could be indicated. 

As to whether the Deny’s alert was probative of a substantial connection between the currency and illegal drug activity, the circuit court said that a genuine issue of material fact existed.

Currency No Long Available for Testing

The court noted that the funds were no longer available for testing because “[p]resumably the government deposited the Funds into a bank account.” The court noted that “Deny’s alert would be unnecessary if the government had used laboratory testing to determine whether the Funds contained amounts of cocaine in excess of the amounts reported in general-circulation currency. By failing to perform such testing (and failing to preserve the Funds until the conclusion of this proceeding), the government eliminated laboratory testing as a source of evidence.” Recent research, which will be mentioned below, may add to the significance of the failure to retain the actual currency for forensic purposes.

Deny’s Training and Performance

Officer King stated that Deny had received 500 hours of pre-certification training and was certified by the Chicago Police Department Training Division as a Police Utility Dog in July 1998. Most of Deny’s alerts in training were to actual drugs, not tainted currency. Dr. Lawrence J. Myers, a defense expert, “avers that there is no scientific evidence demonstrating that a drug dog’s ability to detect cocaine translates into the ability to detect cocaine residue on currency.”

Another defense expert, a dog trainer and behavior consultant, David Kroyer, according to the court:

“… states that the government's evidence regarding Deny's training indicates that Deny was not trained to distinguish between the odor of illicit cocaine and odors such as baking soda, vitamin B-12, and other agents used in creating or "cutting" the cocaine. Consequently, according to Kroyer, Deny's training likely (if mistakenly) instilled in him the tendency to alert not only to the odor of cocaine but also to odors of agents which are used in creating illegal cocaine (but which are not necessarily connected to illegal drugs).”

Dr. Myers and Kroyer stated that “it is industry standard to ‘proof’ a drug dog off of uncontaminated currency—that is, to ensure that the drug dog does not alert to uncontaminated currency.” Kroyer interpreted Deny’s records as indicating that the dog had once alerted to uncontaminated currency. These two witnesses said that it was industry standard to use an outside agency to certify a dog, but that Deny was only certified by the Chicago Police Department Training Division. Dr. Myers emphasized:

“[T]here was no evidence that Deny's training was performed under double-blind testing conditions. Dr. Myers explains that failing to use blind testing can result in ‘cueing’—that is, unconsciously signaling the drug dog to alert or not alert based on the handler's knowledge that the target of the sniff contains or does not contain drugs.”

The district court had held as a matter of law that Deny’s training and field performance established by a preponderance of the evidence that he was a reliable drug dog. That court had relied on U.S. v. Limares, 269 F.3d 794 (7th Cir. 2001), which had focused on the field statistics of the dog in question (Police and Military Dogs, 141, n. 38, 166, n. 6). The district court had determined that the evidence concerning deficiencies in Deny’s training was irrelevant because it suggested “that proof of Deny’s reliability requires something more than evidence of his performance in the field.” The Seventh Circuit, however, said that Limares was procedurally very different from the case at hand because Limares concerned whether there was sufficient evidence to issue a warrant based on probable cause in an ex parte proceeding, not on whether a dog is reliable in a civil forfeiture proceeding (which involves a higher burden of proof).

Florida v. Harris

This brought the Seventh Circuit to the point where it had to take the Supreme Court’s decision in Florida v. Harris into account. That decision had determined that courts should not treat “a dog’s field performance as the gold standard of evidence.” Instead, “evidence of a dog’s satisfactory performance in a certification or training program” is more probative. The circuit court said that the “Supreme Court specifically envisioned attacks on the drug dog’s training.” The court also stated that “[i]f Deny did alert to untainted currency during one of the three times he was tested, then that fact ... could cause a trier of fact to doubt Deny’s reliability.”

“Similarly, Kroyer avers that a drug dog trained on illicit street cocaine rather than pure pseudo-cocaine must be proofed off of the odors of the agents used in creating or ‘cutting’ cocaine (for example, baking soda or vitamin B-12) to ensure that the dog can distinguish cocaine from these other odors. King states that Deny was trained with currency tainted by illegal drugs. And the training log indicates that Deny was not proofed off of the odors of the agents commonly used in ‘cutting’ cocaine (but which are common household products) because the log contains all of Deny's pre-certification training searches and none of the entries involve testing Deny against any of the agents used in ‘cutting’ the cocaine. Thus, Kroyer's averments on this issue provide an additional reason to think that Deny's training was inadequate.”

The circuit court concluded that the fact Deny was certified in-house by the Chicago Police Department might not be sufficient by itself to dispute reliability, it had some significance when combined with the other reliability issues raised.

Cueing and False Alerts

Dr. Angelos, in his affidavit, stated that Deny may have been cued or the briefcase may have become contaminated at the train station. The circuit court said that Marrocco had produced no evidence that the roll-call room was contaminated with enough cocaine to trigger a drug-dog alert. The court cited McCoy v. Harrison, 341 F.3d 600 (7th Cir. 2003), as well as U.S. v. $30,670, as establishing that the mere possibility of cross-contamination does not deprive a dog’s alert of probative weight. The circuit court noted conflicting evidence with regard to where the briefcase was during the sniff in the roll-call room, but said that this issue “can be explored more thoroughly on remand,” presumably in the Daubert hearing already suggested as appropriate for the district court to hold.

Recent Forensics Research

Four scientists at the University of Central Oklahoma and Oklahoma State University quantified cocaine contamination on bills of different denominations using gas chromatography/mass spectrometry or liquid chromatography/mass spectrometry. They looked at bills from three sources:

• questioned bills in criminal cases
• control bills
• uncirculated bills received directly from the Bureau of Engraving and Printing (BEP).

Uncirculated bills received from BEP produced readings lower than the administrative limit of detection. Approximately 97% of bills in general circulation in the U.S. “demonstrated quantifiable levels of cocaine residue,” probably due to mechanical currency counters. Bills were obtained from 66 cities in 43 states and the District of Columbia. The national average was determined to be 2.34 ± 0.08 nanograms (ng) per bill. Distribution across denominations was “reasonably uniform,” which the researchers found consistent with currency counters being a mechanism of spreading cocaine residue.

The researchers noted that it “is unlikely that members of the illicit drug trade have actually physically handled the number of bills that are currently circulating with cocaine contamination.” One means of contamination comes from the use of mechanical currency counters employed in retail and financial institutions which have a “homogenizing” effect on the trace contaminants in the money supply. This was first noticed in 1993 when uncirculated bills from a teller’s drawer at a bank in West Columbia, Texas, were found to have high contamination levels. After it was determined that the bills had been counted by the bank’s mechanical currency counter, the interior of the counter was swiped, and the swipe generated “a massive cocaine peak” in a plasmagram. The researchers found that “a single exposure to a contaminated currency counter will contaminate the bills to the ambient level.”

Variations were detectible between nearby locations. Manhattan had levels more than twice as high as New Hyde Park, New York (0.812 ng/bill vs. 0.334 ng/bill); Miami had levels more than twice as high as Fort Lauderdale (2.83 ng/bill vs. 0.102 ng/bill); El Segundo, California had levels almost 15 times as high as Downey, California (11.5 ng/bill vs. 0.784 ng/bill). Bill specimens coming to the FBI Laboratory’s Chemistry and Toxicology Unit from 1993 to 2001, by comparison, assayed in the area of 80 ng/bill. A bill that shows a sufficiently high degree of contamination may possibly be associated with illicit drug trafficking.

This means that in addition to using a drug dog to assess whether cocaine may have been associated with the drug trade, prosecutors will want to assay the level of cocaine on bills before deciding whether to begin a forfeiture proceeding. The chemical technology used in this study will be combined with research on canine forensics in various ways to establish optimal procedures for forfeitures and prosecutions. The chemical research also creates possible defense strategies. If the defense can establish that the bills were obtained recently from a bank, the defense may want to have any currency counter that may have been used tested for cocaine contamination.

Thomas H. Jourdan, Allison M. Veitenheimer, Cynthia K. Murray, and Jarrad R. Wagner (2013). The Quantification of Cocaine on U.S. Currency: Survey and Significance of the Levels of Contamination. Journal of Forensic Sciences, 58(3), 616-624.

Another interesting research article that also appeared in the Journal of Forensic Sciences found that residues of amphetamine derivatives, opiates, and benzodiazapines could be detected on Euro banknotes. A Spanish research team found that a “procedure based upon extraction with organic solvent, liquid chromatography separation, and mass spectrometric detection allowed the identification of 21 drugs and metabolites in 120 used Euro banknotes collected in the Canary Islands.” This also will necessarily become an area of further research to determine whether amounts of other drugs detected can indicate anything more about the source of the contamination.

Octavio P. Luzardo, Maira Almeida, Manuel Zumbado, and Luis D. Boada (2011). Occurrence of Contamination by Controlled Substances in Euro Banknotes from the Spanish Archipelago of the Canary Islands. Journal of Forensic Sciences, 56(6), 1588-1593.

Other research described at a meeting of the American Chemical Society found that contamination levels of banknotes are increasing, so what is considered background will have to be adjusted depending on when a sample is collected. For a summary of numerous studies concerning cocaine concentrations on currency up to 2002, see Charles Mesloh, Mark Henych, and Ross Wolf (2002). Utilization of the Law Enforcement Canine in the Seizure of Paper Currency. Journal of Forensic Identification, 56(6), 704-724.

Conclusion

The Seventh Circuit is probably correct that attacking a detection dog's reliability after U.S. v. Harris will require looking closely at training and certification, with less emphasis on field performance.  In-house certifications of the sort provided by the Chicago Police Department will be suspect, as those providing the certification may have reasons to assure that an adequate number of dogs are in the field. Training that does not assure that a dog can distinguish contaminated currency from uncontaminated currency, and distinguish currency from various items that can produce methyl benzoate residues, will raise significant questions about deploying a dog in situations such as Deny faced at the train station.  This also will likely be a significant issue in further proceedings in this case.

On the other hand, if a dog's performance in the field can be correlated with specific amounts of drug residue on an item, such as currency, then this is no longer, for purposes of a U.S. v. Harris analysis, identical to the situation where a dog's alert may be to residual odor, minute amounts of a drug, or just a false or cued alert.  If the amount of drugs on currency can be measured and compared with the threshold of the dog's capacity to recognize the drug, then surely this becomes the sort of situation where, in the words of Justice Kagan, "the dog's (or handler's) history in the field ... may sometimes be relevant...."  This remains true even if the instability of methyl benzoate must be taken into account in analyzing the dog's performance.   

If the dog alerts, but the cocaine residue on the bills is average for the area in which the currency was found, then the defense has an argument that methyl benzoate may have come from another source than as a byproduct from cocaine.  If the dog alerts and the bills have significantly more cocaine than most bills in circulation in the area, then the prosecution has reinforced its case that the currency had a connection to the drug trade.  If the dog does not alert, but the currency has high levels of cocaine residue, then the holder of the currency can still be connected to the drug trade if he or she held the currency long enough and other sources of contamination are ruled out.

As noted above, testing the currency in $100,120 is no longer possible because it was deposited into an account and entered general circulation. Any law enforcement official who does this in the future ought to have his head examined as defense counsel will be quick to point out that this is effectively destroying evidence.  A dog’s alert can be reinforced by the chemical analysis, or undermined, but both approaches should be considered in the future.

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

Pointing Gestures and False Alerts: Recent Research Suggests How Dogs May Turn into Walking Search Warrants

Publication Note:  A law review article on  Florida v. Harris, written by L.E. Papet and me, has been posted on the website of the Michigan State University Animal Legal and Historical Center. The article makes use of the same phrase, walking search warrants, which we first published here.  The article was the lead in the 2014 issue of the Journal of Animal and Natural Resource Law, a refereed journal of Michigan State University.  Walking Search Warrants: Canine Forensics and Police Culture after Florida v. Harris.

Eighteen police dog teams entered a church where there were no drugs, and where residual odors were unlikely, yet 17 of the 18 teams alerted to the presence of target odors, most multiple times.  In a paper that caused a good deal of consternation in the police dog world, three scientists at the University of California at Davis argued that the false alerts arose from the fact that the police dog handlers had been led to believe that there were drugs inside the church.  The handlers had cued their dogs.  The results were not videotaped and the authors of the paper did not state exactly how the dogs had been induced to alert when their training should have prevented this.  Recent research on human pointing gestures and dog responses goes some way towards explaining how this may have happened. 

In order that drug dogs not become walking search warrants—as an Ohio deputy sheriff described his dog in a recent newspaper article—it is important that supervisors, handlers, and lawyers understand this research and consider its implications. 

Detailed Sweeps  

Handlers of drug dogs take them into areas where drugs may be present and often want to focus the attention of a dog on a particular place where drugs may be hidden by using a “detailed sweep.”  The dogs are trained to alert to the odor of specific drugs and that behavior involves the dog exhibiting a trained final response, such as sitting and staring, which the dog was initially trained to do in order to receive a reward if a target odor is in fact present.  A problem arises if the dog anticipates the reward or interprets the handler’s behavior, either by subtle suggestion or overt command, and demonstrates the trained final response regardless of the presence of any target odor.  (For a general discussion of cueing, see Cueing and Probable Cause, a periodically updated electronic article on the website of the Animal Legal and Historical Center of the Michigan State University College of Law.)

If the handler uses pointing gestures to direct the dog’s attention to a particular location, which is routinely done in detailed sweeps, the question then becomes whether the dog uses that information solely as a direction to smell in an area, or if the gesture itself is being interpreted in part as a command to alert.  In the latter event, the dog has been cued, and the alert should not provide probable cause for any subsequent investigation by the police who are present.  A recent study published in Animal Cognition tells us something about this complex issue, and it is worth the attention of both police dog handlers and lawyers involved in drug cases where dogs were part of the process by which the drugs were found. 

Dogs React to Pointing Gestures

A person hides a reward in one of two identical cups.  A dog enters the room where the food has been hidden and the person points at one of the cups.  Dogs, more often than any other species that has been tested, will go towards the cup which the person is pointing at, more than chimpanzees, our closest living relative, and more than wolves, of which dogs are a subspecies. By six weeks of age, puppies can follow a human pointing gesture even if this means moving away from the human’s hand.  Four scientists at the Max-Planck Institute for Evolutionary Biology in Leipzig, Germany, describe this skill as special and evidence that “selection pressures during domestication may have affected dogs’ ability to use human communication.” 

But do dogs see a human pointing gesture as “an informative communicative act” or as a command?  The four scientists, Linda Scheider, Juliane Kaminski, Josep Call, and Michael Tomasello, in a paper published in the scientific journal, Animal Cognition, designed an experiment to try to answer this question.  They did not reach a definitive conclusion, but their findings advance the debate and are worth careful consideration.   

Earlier Study Where Dogs Ignored Their Noses

In 2003, another team of scientists from the Department of Ethology of Eötvös Lóránd University in Budapest, had found that when confronted with a choice of two bowls, dogs could ignore their own better knowledge and follow the pointing gesture of a human.  One bowl contained strong-smelling food, potent enough for the dog to be able to smell it from its starting position.  The other bowl was empty. In 79% of cases dogs followed the pointing gesture, suggesting to that team that they were interpreting the pointing as a command. The Hungarian team concluded:

“In the case of contradictory cues, dogs prefer to rely on the human communicative signaling (pointing) when they have only olfactory information about the hiding place. Their willingness to do this decreases, however, if they themselves are in the position to obtain visual information about the ‘state of the world’. This means that if a dog sees where the food is placed, it is more reluctant to go in the opposite direction pointed at by the human, even if they had some ever-day experience (with their owner for example) that pointing strongly correlates with the presence of food. This suggests that dogs do not follow human pointing blindly; they seem to have some control over their response to the pointing gesture. However, it is interesting to note that in both studies about half of dogs in these experimental groups seem to fall in either the two following categories. Some dogs mostly ‘believed’ their own eyes, whilst others would go to the empty bowl indicated by the pointing. This also suggests that, possibly due to social experience for some dogs, human pointing becomes one of the most reliable sources of information in the environment.”

This suggests that in choosing dogs to train for detection work, an effort should be made to find dogs that “believe their own eyes.”  This earlier research, it is worth noting, included Ádam Miklósi, perhaps the most important animal behaviorist currently working on canine cognition.    

Experiment 1

The team from the Max-Planck Institute devised two experiments.  In the first, 96, 50 females and 46 males, of various breeds were used.  Dogs were pets and ranged from 1 to 13 years.  To ensure that dogs could make only one choice, even when a human was not present, cups were placed in a long Plexiglas box with an opening to a compartment at each end.  There was a distance of 1.2 meters between openings.  A sliding cover had to be moved to reach the cup inside the compartment, and once moved the other opening was closed, confining the dog to one choice per trial. 

The experimenter, a 27-year-old woman, caught a dog’s attention by clicking her tongue, then baited one of the cups in full view of the dog so that the dog would get used to the idea that there would be food during subsequent trials.  If the dog chose the correct cup, it was allowed to eat the food.  If it chose the wrong cup, it got no reward.  Food was hidden on both sides so that the dog would know that there were two possible locations for food. 

Dogs were divided into groups where the experimenter made the pointing gesture but added no ostensive cues, and those for whom the experimenter would say things like “Luna, pass’ mal auf; pass’ auf, Luna!” =, in English: “Luna, pay attention; pay attention, Luna!” The procedure that followed this action depended on four conditions: 

1. Authority leaves: dog knowledgeable. After baiting a cup but pointing to the empty cup, the experimenter left the room and the helper let the dog go. The dog had one minute to choose.
2. Authority leaves: dog ignorant. The experimenter showed the dog a piece of food but the helper closed a curtain so that the dog could not see the experimenter putting the food in one of the cups.  The experimenter pretended to bait the second cup to eliminate the chance that the dog would receive audible information.  The helper opened the curtain and the experimenter pointed.  Again the dog had a minute to choose.
3. Authority stays: dog knowledgeable.  This was the same as the first trial, but the experimenter remained in the room after pointing, standing motionless with arms hanging down, head bowed, eyes open.
4. Authority stays: dog ignorant.  This was the same as the second trial except the experimenter remained. 

Dogs followed the pointing gesture to the empty cup significantly more if they did not know the real location of the food.  When they had seen the cup being baited, they generally relied on their visual experience and chose the baited cup, ignoring the pointing gesture.  Whether or not the experimenter—the pointer—remained present when the choice was made had no effect on the dogs.  Nevertheless, if the experimenter pointed, they made the wrong choice significantly more often (about 30% of the time) than in the control condition, where the experimenter did not point.  The use of the additional verbal cues, such as the words of encouragement, did not significantly alter the results.  The fact dogs followed the pointing gesture 30% of the time, when they should have known where the food was, indicated to the researchers that dogs may indeed “interpret pointing to some extent as a command.” This, it should be noted, is a reason for using more than a few blank trials in training regimens, as a dog's taking of pointing as a command to alert will not be apparent without a sufficient amount of testing. 

Experiment 2

In the second experiment of the Max-Planck team, the authority of the human pointing was varied.  “Authority,” according to the team’s definition, was “a person who is able to control the behavior of dogs in a directive way.”  Thus, sometimes the pointer was an adult, sometimes a child.  If pointing is a command, adults should be obeyed more often.  If pointing is informative, it should not matter who is doing it. 

Here, the person pointing could be an adult female or a boy or girl between 4½ and 5½ years old.  Some of the pointing was “honest,” meaning that the experimenter pointed to the cup with food, and sometimes “deceptive,” with the experimenter pointing to the cup without food.  In honest trials, the dog did not witness the cup being bated.  In deceptive trials, dogs witnessed the baiting and knew where the food was. 

Forty-six dogs participated in these trials.  The researchers recruited 26 mother-child pairs as experimenters, none of which had major contact with the dogs before.  Of the children, 15 were girls and 11 boys.  For safety reasons, both children and adults were separated from the dogs by a Plexiglas wall.  Two opaque plastic cups were placed on a wooden board with a distance of 1.3 meters between them.  Most mother-child pairs tested two dogs. 

The researchers found that the dogs “did not differentiate between children’s and adults’ pointing gestures.  The dogs followed the pointing gesture and found the food irrespective of the authority level of the person pointing.”  Nevertheless, when given explicit commands by adults and children to sit, the dogs largely ignored commands by children.  This suggests, according to the researchers “that dogs do not interpret pointing as a strong command comparable to a command like, e.g., ‘sit’.”  This means that anyone analyzing whether a narcotics detection dog is being cued by a handler’s pointing gestures should not expect results as automatic as when a dog sits, stands, or lies down on command.  This also argues that, in establishing testing regimens (whether during training or for certification), there should be a significant number of blank trials in which no target odor is present, as a small number of trials may not reveal a tendency on the part of a dog to alert as a result of pointing gestures.  

Significance of the Research for Cueing Issues in Criminal Trials

The Max-Planck research team concludes that “pointing is a gesture that dogs mainly choose to ignore in situations in which they have better knowledge.”  Not all their results indicated that dogs ignore their own senses when a human’s pointing gesture would lead them to an empty cup.  Thus, their results were not as stark in finding that pointing overcomes knowledge as were the 2003 results of Szetei et al., which the current researchers say might be due to the fact that the earlier research involved both olfactory and visual modalities, while their research “exclusively addressed the visual modality. Seeing food and then following another visual stimulus (the gesture) to an alternative location may be more difficult than smelling the food and then following a cue based in another modality, i.e., visual.”  This observation is important for cueing arguments regarding narcotics detection dogs in that it suggests that pointing may overcome a dog’s reliance on its sense of smell even more than its sense of sight.  Ideally, a narcotics detection dog should not allow a pointing gesture to induce a trained response that is supposed to be solely to a smell—the dog’s alert, yet with a dog that has begun to rely too much on a handler’s pointing gestures, this may be exactly what is happening. 

These behavioral studies used pet dogs that had not been subjected to rigorous scent specific training.  They had not been required to undergo repetitive activities involving pointing, particularly frequent in the early stages of drug dog training.  Such instructional pointing is used in part as a command for the dog to smell in a certain area, but it is important that it not become a command to exhibit the behavior that indicates the presence of drugs.  (For a series of still photographs showing how a pointing gesture can be easily turned into a command, see Ensminger and Papet (2011).  How to Prevent Cueing Arguments from Getting Canine Evidence Thrown Out in Court.  Deputy and Court Officer, 3(2), 36-39.  Unfortunately, it does not appear that the photographs associated with our article are available online so a library copy will have to be obtained, or it may be available from personnel in some courthouses.) 

If a drug dog goes where directed, but does not alert without smelling the odor of drugs, then there is no harm. The question then becomes, for an officer trying to assure the reliability of his dog, or a defense counsel trying to attack the alert of a drug dog, whether the dog tends to alert more often when there is a pointing gesture than when there is not, and to have false positives that cannot be so easily explained away by residual odors.  This requires that there be accurate training records, and that those records involve a significant number of blank trials. (Field records may also be helpful, such as when compiling overall statistics and in comparing teams over significant periods of time.) 

Cueing and the U.S. Supreme Court

The concept of cueing is mentioned in the Supreme Court’s decision in Harris, where Justice Kagan states that “even assuming a dog is generally reliable, circumstances surrounding a particular alert may undermine the case for probable cause—if, say the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.”  Among things that defense counsel should look for are indications that pointing has, for a dog, become more than informative, that it has become a command that the dog alert. 

Justice Kagan said that a defendant “must have an opportunity to challenge such evidence of a dog’s reliability [from certification or training programs], whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.” Professor Andrew Taslitz recently argued—correctly in our opinion—that the Court’s reference to expert testimony can “be read to include expert scientific testimony, and the risk of cuing is indeed one about which the science of dog detection warns.” Such studies as the ones described here are therefore important for counsel to consider in developing defense arguments.  (Professor Taslitz’s recent article appears in the American Bar Association’s publication, Criminal Justice, and may be downloaded from the magazine’s website.)

Conclusion

Fortunately for those who wish to determine a possible propensity for alerting because of a handler’s conscious or unconscious signals, more is now being learned about canine responses to human behavior patterns.  We will be adding a number of important behavioral studies to our running article on Cueing and Probable Cause that are significant in this connection.  We are also writing an analysis of Harris and Jardines where we will discuss the impact the Supreme Court’s decisions are likely to have on police practices and culture. Meanwhile, research such as that discussed here provides important guidance for supervisors concerned with handlers whose dogs’ alerts are too often leading to pointless investigations, and defense counsel who want to question whether a dog was reliable enough to base probable cause on its alert.   

Sources:

1. Lit, L., Schweitzer, J.B., and Oberbauer, A.M. (2011).  Handler Beliefs Affect Scent Detection Dog Outcomes. Animal Cognition, 14(3), 387-394.
2. Scheider, L., Kaminski, J., Call, J., and Tomasello, M. (2013). Do Domestic Dogs Interpret Pointing as a Command?  Animal Cognition, 16(3), 361-372.
3. Szetei, V., Miklósi, A., Topal, J., and Csanyi, V. (2003).  When Dogs Seem to Lose Their Nose: An Investigation on the Use of Visual and Olfactory Cues in Communicative Context Between Dog and Owner.  Applied Animal Behaviour Science, 83(2), 141-152.
4. Taslitz, A.E. (Summer 2013). The Cold Nose Might Actually Know?  Science and Scent Lineups.  Criminal Justice, 28(2), 4-8, 55-7.

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

Fish & Wildlife Announces Public Hearings on Taking Gray Wolves off the Endangered List

Additional Hearing Announced.   In the October 2, 2013 Federal Register, the Fish and Wildlife Service announced that it will hold an additional public hearing on October 17, 2013, in Denver, Colorado. The hearing will be held at the Paramount Theatre, 1621 Glenarm Place in Denver.  A phone number is listed: (303) 405-1245.  A call to this number was answered by a machine explaining that I had reached the Kroenke Sports Events and Entertainment Department. 78 Fed. Reg. 60813 (October 2, 2013)  

The U.S. Fish and Wildife Service has extended the comment period on its proposals to remove the gray wolf from the List of Endangered and Threatened Wildlife but to keep the Mexican wolf listed as endangered.  The comment period was due to end on September 11, but is now being extended to October 28.  Three public hearings have been announced on these proposals:

• September 30, 2013, from 6 pm to 8:30 pm in Washington, DC, at the Department of the Interior Auditorium, 1849 C Street, NW.  For building information call: (202) 208-3100.
• October 2, 2013, from 6 pm to 8:30 pm in Sacramento, California, at the Clarion Inn, Martinique Ball Room, 1401 Arden Way, Sacramento, California 95815.  For location information call: (916) 922-8041.
• October 4, 2013, from 6 pm to 9 pm in Albuquerque, New Mexico, at the Embassy Suites, Sandia Room, 1000 Woodward Place NE.  For location information, call (505) 245-7100.

Apparently only the third hearing will consider the remaining protection on the Mexican wolf. The extension of the comment periods and the public hearings were announced in the Federal Register on September 5.

• Proposed Revision to the Nonessential Experimental Population of the Mexican Wolf, 78 Fed. Reg. 54613 (September 5, 2013).
• Removing the Gray Wolf (Canis lupus) From the List of Endangered and Threatened Wildlife and Maintaining Protections for the Mexican Wolf (Canis lupus baileyi) by Listing It as Endangered, 78 Fed. Reg. 54614 (September 5, 2013). 

For anyone who has not commented yet, written comments will be accepted by Fish and Wildlife Service personnel at the meetings. If you want to speak at one of these hearings, the Service states the following:

“We are holding the public hearings to provide interested parties an opportunity to present verbal testimony (formal, oral comments) or written comments regarding the June 13, 2013 (78 FR 35664), proposal to remove the gray wolf from the List and maintain protections for the Mexican wolf by listing it as endangered. A public hearing is not, however, an opportunity for dialogue with the Service or its contractors; it is a forum for accepting formal verbal testimony. Anyone wishing to make an oral statement at the public hearings for the record is encouraged to provide a written copy of their statement to us at the hearings. In the event there is a large attendance, the time allotted for oral statements may be limited. Speakers can sign up at the hearings if they desire to make an oral statement. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us.”

So don’t expect the Fish and Wildlife officials on hand to do anything more than listen (particularly if it gets heated). 

Blanket Bans on Service Animals Disallowed for Psych Wards, Dialysis Units

It has been just over 22 years since the Department of Justice first issued regulations detailing the rights of persons with disabilities who use service animals, yet many issues continue to be addressed and resolved by regulators and courts.  Some of this is due to the fact that there are now a number of types of service animals, such as autism service dogs, that did not exist in 1991, and some is due to the fact that there may be conflicting interests concerning the presence of dogs in certain environments—health care facilities, schools and universities, military bases, various workplace environments—that must be addressed before the application of the law to a particular situation can be clarified. A recent case from a federal district court in California considered whether and when a hospital could preclude a patient from bringing a mobility impairment dog into a psychiatric ward.  One of the documents filed with the court was a memorandum from the Department of Health and Human Services, which has not been widely distributed, but which provides guidelines for dialysis units dealing with patients who have service animals.  Both the case and the memo are important developments in service animal law.

Patient Denied Access for Mobility Impairment Dog in Psychiatric Ward

Abigayil Tamara is seventy years old and suffers from a number of physical disabilities, the primary of which is a mobility disability resulting from surgery for a herniated disk in 1994 and a back fusion in 2009.  She has difficulty walking and maintaining balance and has used a service dog named Inglis since 2010.  Judge Ronald M. Whyte of the federal district court for the Northern District of California elaborates:

“Tamara and Inglis trained extensively when they were matched, and they supplement training daily. She walks with him and balances by leaning on the rigid handle of his harness. Inglis also retrieves things, carries items, opens some doors, pushes handicapped and elevator buttons, helps Tamara take off her jacket, and puts her laundry in the laundry basket. Tamara alleges that her independence and mobility have greatly increased since being matched with Inglis and that it is important for her to take Inglis everywhere, not only because he provides important services for her, but also because this is part of the training and bonding requirement of owning a service dog.”

Tamara also has bipolar disorder and has been on psychiatric medication for 20 years. The Social Security Administration declared her disabled because of the disorder, and she also has a disabled parking placard and a disabled license.  She uses the El Camino Hospital in Mountain View, California, for hospital services.  Her psychiatrist and two of her doctors have privileges there, and she had been hospitalized five times before her case was heard by Judge Whyte.  The case involved the hospital’s refusal to allow Tamara to bring Inglis with her during a stay in the hospital’s locked psychiatric ward in 2011. The judge provided additional detail regarding her admission:

“In December 2011, the medication changes ordered by her psychiatrist began causing Tamara pain. On December 24, 2011, Tamara went to the emergency room of El Camino with Inglis. El Camino admitted her to rebalance her medication and manage her pain. Although her condition was physical, not psychological, El Camino placed her in the psychiatric ward where her practicing psychiatrist worked, so that he could monitor her symptoms. When the orderly came to escort Tamara to the psychiatric ward, he informed Tamara that Inglis was not allowed in the hospital, allegedly stating that dogs have not been allowed since someone was bitten.”

Tamara’s treating psychiatrist wrote an order for Inglis to be admitted with Tamara into the psychiatric ward but this order was ignored until Infection Control, a function that was closed over the Christmas holiday, could consider the issue.  On December 27, Infection Control told Tamara that Inglis could not be allowed to be with her unless he was tested for MRSA (Methicillin-Resistant Staphylococcus Aureus). The next day, however, the manager of the psychiatric ward, according to the complaint, told Tamara that she should transfer to another hospital because Inglis would not be allowed into the hospital under any circumstances.

Tamara used a walker during her 13-day stay.  Inglis was not allowed to enter the hospital during that period.  She claimed that the walker did not allow her to move as well as Inglis did, and she had difficulty using the bathroom without him.  After a time she asked for a portable toilet to use by her bed. She had to wait extended periods for help with small tasks like picking up dropped items. 

Service Animal Policy of El Camino Hospital

El Camino Hospital’s policy was to allow service animals in all areas of the hospital except areas (1) with established traffic control and (2) where the hospital restricted their presence on a case-by-case basis to protect the health and safety of patients.  This policy was changed at some point after Tamara’s stay to allow service animals “in any area of the Hospital that is unrestricted to inpatients, outpatients or visitors such as lobbies, cafeterias and patient rooms provided that the service animal does not pose a Direct Threat to the health and safety of others and would not require a fundamental alteration in the Hospital's policies and procedures.”  Apparently it was determined under this policy that service animals would not be admitted to certain “restricted access areas,” which include Behavioral Health Units (psychiatric wards).  Thus, if Tamara needs to be admitted again, she will still not be able to bring Inglis with her. 

Tamara Seeks Preliminary Injunction

Tamara filed suit in federal court seeking a preliminary injunction to require El Camino Hospital to admit service dogs unless the hospital has substantial evidence the dog is a direct threat to the health and safety of others that cannot be mitigated by reasonable modifications of policies, practices, or procedures. 

To receive a preliminary injunction, Judge Whyte (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)) said that Tamara had to establish four things:

1. She is likely to succeed on the merits.
2. She is likely to suffer irreparable harm in the absence of preliminary relief.
3. The balance of equities tips in her favor.
4. The injunction is in the public interest.

The judge considered each item in turn, but spent most of his attention on the first item. 

Likelihood of Success on Merits

To prevail on a discrimination claim under the Americans with Disabilities Act (ADA), Tamara would have to show:

1. She is disabled under the ADA.
2. The hospital is a private entity that owns, leases, or operates a place of public accommodation.
3. She was denied public accommodations by the defendant because of her disability.

Under 42 U.S.C. 12102, a person with “a physical or mental impairment that substantially limits one or more major activities” has a disability for purposes of the ADA.  That this was true of Tamara was not disputed by the hospital.  Hospitals are listed among places of public accommodation under 42 U.S.C. 12181(7)(F).  A failure to make reasonable modifications in policies, practices, or procedures is a form of discrimination under 42 U.S.C. 12182(b)(2)(A)(ii), though this will not be the case if the modifications involved would fundamentally alter the nature of the facility or service provided. Regulations (28 CFR 36.208) elaborate that a public accommodation may deny services to a disabled individual if “that individual poses a direct threat to the health or safety of others.”  To determine this, according to that regulation:

“[A] public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.” 

An appendix to the regulations states further that “a healthcare facility must also permit a person with a disability to be accompanied by a service animal in all areas of the facility in which that person would otherwise be allowed.”  Judge Whyte states that blanket policies that service animals fundamentally alter the nature of a service “are rarely appropriate.”  Whether a service animal fundamentally alters the nature of a service is, he notes (referring to a case involving an order to the PGA to allow a professional golfer with a mobility impairment to use a golf cart), an “intensely fact-based inquiry.”

The court cites the Centers for Disease Control’s Guidelines for Environmental Infection Control in Health-Care Facilities, which includes three pages of guidance regarding service animals.  The CDC notes that service animals are appropriately excluded from operating rooms and special care areas which are designated as having restricted access to the general public. 

1988 Memorandum of the Department of Justice

El Camino Hospital did find support for its policy of excluding service animals from psychiatric wards in a 1993 letter from the Civil Rights Division of the Department of Justice to Senator John C. Danforth of Missouri, which attached a 1988 memorandum of the Department of Justice that included the following language:

“A medical justification showing that the presence or use of a dog guide would pose a significant health risk in certain parts of the hospital can serve as the basis for the exclusion of dog guides, but only from the hospital areas directly involved. such areas might include operating room suites, burn units, coronary care units, intensive care units, oncology units, psychiatric units and isolation (infectious disease) areas.”

Judge Whyte notes, however, that although the letter to Senator Danforth was written in 1993, after the ADA was passed (in 1990), the attached memorandum dated from 1988 and was based on the Rehabilitation Act of 1973.  The judge acknowledges that “certain principles of the Rehabilitation Act live on in the ADA,” but this particular guideline “apparently did not survive the revisions because there is no mention of psychiatric wards in the sections of the Code of Federal Regulations related to service animals or the extensive explanatory appendixes.”  Thus, he finds that the letter and memo were not persuasive. 

Service Animals in Dialysis Facilities

Tamara found a similar document, a 2010 memorandum from the Department of Health and Human Services regarding service animals in dialysis facilities. The memo was signed by three officials in the DHHS General Counsel offices. These officials found it “very unlikely” that service animals could be appropriately excluded from a dialysis unit though they noted that “while a patient is receiving dialysis and cannot get up to walk or toilet the animal, the hospital is not required to step in.  It is the patient’s duty to arrange for a handler.”  Interestingly, this memo also referred to, and did not notice any conflict with, the letter to Senator Danforth and the attached 1988 memorandum.  (I have reproduced the memorandum below in an appendix because a web search did not reveal it as having been posted anywhere.  It is part of the court record, and could be important, particularly for individuals seeking to take service animals to dialysis facilities.)

Milieu Therapy

The federal district court summarizes the hospital’s argument as to why a service animal should be excluded from its psychiatric ward as follows:

“The El Camino psychiatric ward employs ‘milieu therapy’ which encourages community interaction, and it argues that the presence of an animal ‘may spark a response in [a] patient that is consequential.’ ... El Camino created its service dog policy after a literature search and an extensive approval process.... It argues that the inpatient psychiatric setting is ‘notoriously an area of risk for agitation and stress’ and that the presence of a service animal would fundamentally alter the nature of its service because one of the goals of the wards is to ‘eliminate potential sources of stress and disruption.’ … El Camino's arguments, however, are speculative: patients ‘may be sedated,’ patients ‘often have severe psychosis,’ and ‘it is more likely than not that a number of patients will fixate on the animal.’”

El Camino Hospital Psychiatric Ward

Tamara pointed out, however, that the hospital’s occupational therapist sometimes brought her dog to the ward.  She also noted that if her dog were an annoyance to anyone, it might be possible to solve the problem merely by shutting a door.  The layout of the psychiatric ward was provided in a document filed with the court, which is reproduced here.  

As an aside, I would like to note that one of the hospitals I visit with my therapy dog has a psychiatric ward.  A staff member used to bring his dog to the ward and leave it with the patients for significant parts of many days.  Staff, patients, and visitors all professed to me that they enjoyed the animal’s presence. I avoided that ward with my therapy dog because most of the other wards had no therapy dog visits aside from me and Chloe. 

The court found that the hospital’s arguments only established that the dog “might affect the ward, but not that it will fundamentally alter its nature. This is in contrast to sterile environments, which would be impossible to maintain in the presence of a service animal.”  The court concluded that the hospital had “not met its burden to show that the presence of service dogs within the psychiatric ward is likely to fundamentally alter the nature of the facility….”

Individualized Assessment

To show that a direct threat exists, a public accommodation must, under 28 CFR 36.208, make an individualized assessment to ascertain the “nature duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices or procedures or the provision of auxiliary aids or services will mitigate the risk.” There was no such individualized assessment here, only a general hospital policy. 

Such an assessment might result in the exclusion of a service animal, as happened in Roe v. Providence Health System-Oregon, 655 F.Supp.2d 1164 (D.Or. 2009), where a large foul-smelling service animal prone to infections, which the owner refused to bathe, was found to bring a risk of infection. 

Dangerous Harness

El Camino Hospital argued that Inglis’s harness posed a risk.  According to the court:

“El Camino argues that having a dog in the psychiatric unit would be unsafe because its harness could be used as a weapon and the dog might dangerously upset some patients, [but] these accusations are all based upon generalized speculation. Some psychiatric wards contain unstable patients who may be upset by a service animal. But, nothing in the answer, opposition, or any of the papers provided by the defendants allege that El Camino made an individualized assessment as to whether this psychiatric ward, at the time of Tamara's admittance, had such unstable patients, or if it did, a fundamental alteration would have been required to address any concerns. Further, while a locked psychiatric ward may pose problems for some individuals to care for the hygienic needs of their service animals, nothing indicates that El Camino assessed whether Tamara would be capable of caring for her dog or if reasonable modifications could allow this. Moreover, while it is possible a service dog's leash or harness could be used as a weapon, nothing indicates that El Camino assessed whether Tamara and Inglis could use a safer type of harness or whether the harness could be safely locked away when not in use.”

The court correctly observes that the walker that the hospital gave Inglis could just as easily as the harness be used as a weapon. 

Inglis’s Training

Tamara argued that Inglis would not be a risk in the psychiatric ward.  As described by the court:

“[Tamara] asserts that through his training, Inglis has become accustomed to 'loud noises and agitating behavior,” and he has been in situations where there are “loud, unstable people.' ... Inglis is trained to remain calm and obey Tamara, ignoring distractions.... She further asserts that Inglis' harness, given its extensive buckles, would be difficult to remove and use as a weapon. She also provides a layout, from her memory, of the psychiatric ward, asserting that there is a separate locked section for the patients in need of truly intensive care. These patients apparently do not interact with the others or participate in the milieu community treatment, and thus would not interact with Inglis. Tamara further asserts that the Hospital could have considered reasonable accommodations to allow her to care for her dog's hygiene needs: allowing her, with supervision, out of the locked ward to take Inglis into the hospital's outside area, or allowing a third party to take Inglis from Tamara at the door of the ward and do the same. Failure to consider these alternatives was a failure to comply with the ADA's requirement that the public accommodations consider changes in practices or policies that would mitigate any direct threat.”

As indicated on the floorplan reproduced above, it might not be difficult to let Tamara take Inglis out several times a day to the outside area that is next to the psychiatric ward. 

Irreparable Harm, Balance of Hardships, and Public Interest

The court concludes that Tamara was likely to succeed on the merits. A future hospitalization seemed likely, which the hospital did not dispute.  As to the effect of being prevented to bring Inglis with her during a future hospitalization, the court stated:

“Every day Tamara is away from Inglis, she is not only deprived of her independence, but she loses time training and bonding with Inglis, resulting in less future independence. To be dependent on others to perform simple physical tasks is both frustrating and painful. El Camino's refusal to admit Inglis into the psychiatric ward, without substantial evidence of a direct threat to health or safety, is an imminent, irreparable harm.”

As to the third requirement for getting a preliminary injunction, the court states that “El Camino appears to face only an administrative inconvenience mandated by law,” and that the “balance of hardships clearly favors Tamara.” As to the fourth, the public interest in equality also favored Tamara, particularly since she was not requested a blanket injunction that her dog be admitted, regardless of circumstances, only an individual assessment.

Issues for the Hearing

There can be reasons for excluding service animals from areas other than just sterility or space.  A friend of mine, a psychologist, had a patient who wanted to bring an animal to therapy sessions, which he permitted.  He soon realized, however, that the animal was becoming a way for the patient not to deal with those issues that needed to be addressed for the therapy to advance.  The same might be true of therapy sessions in a hospital, whether individual or group sessions.  If the presence of a dog retards an individual’s therapy, this is more than an administrative inconvenience for the hospital, and may be a hardship for the patient.  Certainly society has an interest in the patient getting well enough to leave a locked environment. (In a recent case in Georgia, a patient’s suit against his psychiatrist for refusing to let him bring his service dog to therapy sessions failed, though on procedural grounds and without any discussion of the merits.  Mercer v. Munn, A12A0382 (Georgia Ct. of Appeals, May 6, 2013).)

Tamara’s service animal was a mobility impairment dog.  It is quite likely that she could attend individual psychotherapy sessions with the dog without this impeding the progress of that therapy.  Suppose, however, that the dog was a psychiatric service dog, and a focus on it began to detract from the patient’s progress.  Studies on the effects of dogs on psychological conditions have not always found that they were a force for improvement, as Dr. J.L. Thomas and I observed in our paper for the Journal of Forensic Psychology Practice.  Also, as noted by Winkle, Crow, and Hendrix (discussed in a blog a year ago), there is a need for much more research specifically as to the psychological effects on those who use service dogs.  It is therefore arguable that some individuals with service dogs should be able to bring their dogs into psychotherapy sessions, just as they could bring a walker or a wheelchair, but other individuals should not be allowed to do so. 

Conclusion

I come with my own biases on this.  Early in my legal career I worked for seven years in an impact litigation unit inside of New Jersey state government, frequently suing mental hospitals in right-to-treatment cases.  We continually found that hospitals would use terms like “milieu therapy” and "restful rehabilitation" when in fact all they were doing was tranquilizing patients with as many psychotropic medications as the human body could hold, a practice we labeled as “polypharmacy” in countless briefs.  When that is all a hospital is doing, I am inclined to believe that an effort to exclude service animals is primarily a way of reducing friction with ward staff and janitorial unions.  That admittedly may not be the case here, but I remain skeptical of institutional resistance when it comes to service animals and innovative therapies. 

In a case on which I was consulted recently, I advised the administrator of a facility to think about the dog as a prosthetic device—a walker, a wheelchair—and make decisions based on that perspective unless a solid argument could be made to distinguish the dog from such a device.  This is not a simple issue and the California federal court was right to require that the hospital reconsider its policy on service animals carefully and apply that policy to each situation separately. 

Tamara v. El Camino Hospital, 964 F.Supp.2d 1077 (N.D. Cal. 2013)

Thanks to J. Lawrence Thomas and Leigh Anne Novak for comments. 

APPENDIX: 2010 Department of Health and Human Services General Counsel Memorandum concerning dialysis facilities.  (Note: formatting had to be altered to replace indents with quote marks and to insert footnotes into text.)

Date: July 12, 2010

To: Ginger Odie, Manager, Non-Long Term Care Certification & Enforcement Branch·

From: Office of the General Counsel, Region VI, Dallas, Texas

Subject: Required Accommodations for Disabled Individuals' Service Animals in Dialysis Facilities

I. Background

You asked for our assistance in assessing the accommodations required of health care facilities (specifically, dialysis facilities) for disabled patients' service animals. In response to your request, the Office of the General Counsel has the following interpretations and suggestions.

II. Brief Answer

Generally, it is difficult to exclude a service animal from a hospital or health care setting because the ADA is construed very broadly and with great deference to disabled individuals. With respect to dialysis units, it is very unlikely that a service animal can be excluded unless it presents an individual threat to health and/or safety.

That said, while the hospital must admit service animals, it is under no obligation to supervise or care for them. For example, while a patient is receiving dialysis and cannot get up to walk or toilet the animal, the hospital is not required to step in. It is the patient's duty to arrange for a handler.

III. Legal Analysis

A. In general, a service animal must be permitted in a hospital or health care setting.

The Americans with Disabilities Act provides protection to disabled individuals seeking access to public facilities. The Act, in its entirety, may be found at 42 U.S.C. §§ 12101-12213. In pertinent part, it states:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. 42 U.S.C. § 12182(a)”

The term "disability" encompasses dialysis patients because it includes the limited function of a bodily organ or system. 42 U.S.C. §§ 12102(1)(A), (2)(B). The diminished kidney function of ESRD patients certainly meets this criterion. Moreover, the Act requires the definition of "disability" to be construed generously in order to provide maximum protection. 42 U.S.C. § 12102(4)(A).

A hospital, health care provider's officer, or other similar service facility is a "public accommodation" for the purposes of the Act. 42 U.S.C. § 12181(7)(P). It is therefore required to make "reasonable modifications in policies, practices, or procedures" as are necessary to provide disabled individuals with access to services and facilities. 42 U.S.C. § 12182(2)(A)(ii). The Code of Federal Regulations (C.P.R.) clarifies that permitting a disabled individual's use of a service animal is such a reasonable modification. 28. C.F.R. § 36.302(c)(l) (2010) [fn: All citations to the Code of Federal Regulations in this brief refer to the October 1, 2008 revision of the regulations unless indicated otherwise.] A service animal is defined as "any guide dog, signal dog, or other animal individually trained to do work or perform tasks for the benefit of a [disabled] individual." 28 C.F.R § 36.104.

As a practical matter, the hospital should be cautious in how it ascertains whether an animal is·a legitimate service animal, rather than.a pet or therapeutic animal. Per ADA informational materials published by the Department of Justice-Civil Rights Division, [fn: 42 U.S.C. § 12206(c)(3) requires federal agencies responsible for implementing and overseeing the Act to make available technical assistance manuals and other educational materials clarifying rights and duties under the Act. Formal publications by federal government agencies are within this category and may be relied upon for guidance. Courts have routinely relied upon such publications and guidance. See e.g., Grill v. Costco Wholesale Corp., 312 F. Supp. 2d 1349 (W.D. Wash. 2004) (citing the "DOJ Business Brief' and "DOJ Guidance" and stating that they are owed deference); Thompson v. Dover Downs, Inc., 887 A.2d 458 (Del. Super. Ct. 2005) (taking into account information received from the DOJ's ADA Information Line).] an establishment may ask either what task or function the animal performs or simply whether the animal is a service animal. It may not ask about the nature of the individual's disability, request  documentation of the individual's disability, or require certification or ID stating that the animal is a registered service animal. [fn: Within a hospital or healthcare setting, the nature of a patient's disability will likely already be known or apparent. However, it is wise to keep these guidelines in mind if a patient's known disability does not seem to relate to the service animal's function. For example, an individual with ESRD is disabled for the purposes of the Act, but it may appear to hospital personnel that the individual's service animal does not perform a task related to that disability. Hospital staff must be careful in how they ascertain the legitimacy of the service animal because the patient may have another, underlying disability that necessitates the use of the service animal.] It is generally best to accept an individual's oral assurances that an animal is a service animal. See DEPT. OF JUSTICE, COMMONLY ASKED QUESTIONS ABOUT SERVICE ANIMALS IN A PLACE OF BUSINESS (1996), http://www.ada.gov/qasrvc.htm [hereinafter, "Service Animal CAQ"]; DEPT. OF JUSTICE, ADA BUSINESS BRIEF: SERVICE ANIMALS (2002), http://www.ada.gov/svcanimb.htm [hereinafter, "Service Animal Business Brief'].

B. A facility is only required to admit a service animal; "reasonable modifications" do not extend to taking responsibility for the animal.

The Code of Federal Regulations explicitly provides that "[n]othing in this part requires a public accommodation to supervise or care for a service animal." 28 C.F.R.§ 26.302(c)(2). That is, the facility is not required to walk, feed, or toilet the animal while the patient is indisposed. Likewise, a facility need not provide a special area for the animal to relieve itself. See Service Animal CAQ; Service Animal Business Brief. It is the responsibility of the patient to make arrangements for a handler.

If a facility feels that it would be beneficial to exceed the requirements and support the presence of its disabled patients' service animals, it may provide for emergency stewardship of a service animal while a patient is indisposed and unaccompanied by a handler. Some facilities have implemented programs wherein volunteers from the community or from within the hospital take charge of the animal while the patient is being treated. See Susan L. Duncan, et al., APIC State-of-the-Art Report: The implications of service animals in health care settings, 28 AM. J. INFECTION CONTROL 170, 176-77 (2000). However, there are legal implications to taking custody of a service animal and consent and waiver forms should be obtained from the owner. Specific language would be dependent upon the kind of program a facility elects to implement; legal counsel should be obtained on a case-by-case basis to formulate appropriate policies and procedures.

The presence of a service animal may raise damage and cleanliness concerns. It should be noted that, while a facility may not charge a disabled individual a maintenance or cleaning fee simply because he/she brings a service animal on the premises, the facility does have the right to bill the animal's owner for any damage it does as long as it is the facility's regular practice to charge non-disabled individuals for the same kind of damage. For example, if a service animal scratches a chair in the dialysis unit, the facility would only be able to bill its owner for the repair/replacement costs if it would bill a non-disabled individual for causing the same damage.

C. In certain, limited instances, a facility may exclude a service animal.

i. The "Fundamental Alteration" Provision

There are a few provisions in the Act which excuse a facility from accommodating a service animal. First, a facility may be excused from modifying its policies to accommodate an animal if it can show clearly that the animal's presence would fundamentally alter the nature of the facility or services it provides. 42 U.S.C. § 12182(b)(2)(A)(ii). For instance, there may be clearly identifiable areas where it would be unreasonable to expect a service animal to be admitted. Operating rooms or other sterile areas where gowns, masks, and gloves are required are good examples; if anti-contamination precautions must be observed by all who enter an area, it would be a fundamental alteration to the nature of the facility to allow an animal to enter. Another instance might be a small area through which personnel must pass in order to exercise their duties where the animal's presence would prevent them from passing. (For example, if a nurse must walk back and forth in a narrow aisle to administer care, a large dog blocking her way might be viewed as a fundamental alteration of the area and the nature of services she is able to provide.) In general though, most areas of a hospital should be open to a service animal. As one article notes, "if persons are allowed to be present without being required to observe special precautions ... it would be difficult to argue that a clean, healthy, well-behaved service animal should be denied entrance." See Duncan et al., supra, at 173. It would appear that a dialysis unit would not fall within the limited class of areas from which a service animal can automatically be excluded.

A hospital should invoke the "fundamental alteration" rationale sparingly to deny admission of service animals; the Act is generally construed liberally in favor of disabled individuals. [fn: In fact, the preamble to the relevant C.F.R. section states that "[i]t is intended that the broadest feasible access be provided to service animals in all places of public accommodation, including ... hospitals .... " 28 C.F.R. pt. 36, app. B (citing Education and Labor report at 1 06; Judiciary report at 59) (emphasis added).] Rather than formulating blanket policies, it is wise to make case-by-case determinations based on the environment, circumstances, and service animal. The Ninth Circuit echoed this sentiment in a 2004 opinion, stating that whether an accommodation causes a fundamental alteration is an "intensively fact-based inquiry" and mere speculation of a disturbance or alteration is insufficient; there must be substantial underlying evidence. See Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 844 (9th Cir. 2004) (citing Crowder v. Kitagawa, 81 F.3d. 1480, 1486 (9th Cir. 1996).

ii. The "Safety" Provision

The regulation at Section 26.301 provides that a public accommodation "may impose legitimate safety requirements that are necessary for safe operation." 28 C.F.R. § 26.301(b). In a hospital setting, "safety" might be a more appropriate basis for excluding a service animal than "fundamental alteration" because jeopardy to health falls within the category of safety risks. However, similar limitations apply to the safety provision as to the fundamental alterations provision; the regulation states that safety assessments "must be based on actual risks and not on mere speculation, stereotypes, or generalizations .... " ld. Generally, hospitals should not assume automatically that an animal will present a threat to hygiene, health, or safety. An Illinois court found that an animal could not be excluded for generalized concerns about health and safety; rather exclusion had to be supported by a qualified medical professional's opinion that the animal presented a threat to the hospital's health and safety that a human being would not. Branson v. West, 1999 WL 1129598 (N.D. Ill. 1999), amended memorandum opinion and order at 1999 WL 1186420 (N.D. Ill. 1999).

There may be areas of a hospital where an animal necessarily presents a safety risk. [fn: This is parallel to the "fundamental alteration" situation, where admitting a service animal in an operating room would fundamentally alter the sterile nature of the facility. Essentially, this is a second, separate basis for upholding the exclusion.] In a technical assistance letter to U.S. Senator John C. Danforth [fn: Technical Assistance Letter from the U.S. Dept. of Justice to John C. Danforth, U.S. Senator (May 10, 1993).], the Department of Justice expressed the view that is best to tailor safety-based exclusions of service animals to as few areas within the premises as possible. Specifically,

“[A] health care facility, such as a hospital is covered by ... the ADA. []A showing by appropriate medical personnel that the presence or use of a service animal would pose a significant health risk in certain areas of a hospital may serve as a basis for excluding service animals in those areas. In developing a list of areas from which service animals may be excluded, a hospital facility must designate only the exact areas where exclusion is appropriate.”

As a whole, it is best to make as few wholesale determinations as possible. Aside from a very narrow class of areas (like operating rooms), there should be very few places from which service animals are automatically excluded. Rather, facilities should try to evaluate safety risks case-by-case, taking into account: (1) the area to be entered; (2) the type of service animal; and (3) the individual animal's characteristics. Courts have held that, under the safety provision, it is reasonable to require an animal has been vaccinated [fn: See Crowder v. Kitagawa, 81 F.3d 1480 (9th Cir. 1996).] and to require that an animal not be "dangerous" or "poisonous." [fn: See Assenbergv. Anacortes Housing Authority, 2006 WL 1515603 (W.D. Wash. May 25, 2006).] Hospital personnel may also take into account exceptionally strong odors emanating from an animal and whether an animal causes allergic reactions in patients and staff. [fn: See Roe v. Providence Health Systems-Oregon, 655 F.Supp.2d. 1164, 1167-68 (D. Or. 2009).] As an Oregon court noted, "[a] hospital is charged with keeping all of its patients safe, providing quality health care to all, and providing a safe workplace for its staff." [fn: Id. at 1168.]

The Service Animal CAQ also adds that an animal may be excluded if it displays any threatening behavior (i.e.-growling, snapping, biting) towards other patients or personnel. The animal must actually display vicious behavior; it is insufficient to base a "threat to safety" decision upon past experiences or beliefs about the innate tendencies of certain breeds.

iii. The "Direct Threat" Defense

The Act also provides the so-called "direct threat" affirmative defense, stating that a facility is not required to provide a disabled individual access to its services and facilities if that individual "poses a direct threat to the health or safety of others." 42 U.S.C. § 12182(b )(3 ). "Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures .... " Id.

The direct threat defense follows naturally from the fundamental alteration and safety provisions and often supplements those provisions as a basis for service animal exclusion. In Roe v. Providence Health System-Oregon, the court provided the elements necessary for a hospital to establish a direct threat affirmative defense. They are:

(1) the animal's presence creates a risk to the health or safety of patients, staff, and/or visitors;

(2) the hospital can prove with clear evidence that the risk is significant; and

(3) the direct threat cannot be eliminated by modifying the hospital's policies, practices, or procedures. [fn: Id.]

With respect to the second element, "clear evidence" might include testimony from health professionals as to the risk presented by the animal, visible signs that an animal has a disease or infection, or instances of the animal's vicious conduct.

With respect to the third element, it is important that the hospital evaluate whether a reasonable modification could be made to accommodate the animal and eliminate the perceived risk. For example, if another patient's allergic reaction could be avoided simply by shutting the door between his room and the service animal's owner's room, the hospital would need to do so.

D. Conclusion

In sum, it is very difficult to exclude a service animal from a hospital or health care setting because the ADA is construed very broadly and with great deference to disabled individuals. There are very few areas from which a service animal may be excluded automatically and a case-by-case determination generally needs to be made. With respect to dialysis units, it is very unlikely that a service animal can be excluded unless it presents an individual threat to health and/or safety.

Although the hospital must admit service animals, it is under no obligation to supervise or care for the animals. For example, while a patient is receiving dialysis and is unavailable to move about to walk or toilet the animal, the hospital is not required to take stewardship of the animal. It is the responsibility of the patient to arrange for a handler. If a hospital decides to provide disabled patients with the services of a handler, it should seek the assistance of counsel to formulate clear policies and procedures, specific to the structure of the program it elects to implement. Please feel free to contact Julian Treadwell if you have any questions at (214) 767-2919.

Sincerely,

Mark B. Childress, Acting General Counsel

Delores "Dee" Thompson, Chief Counsel

Julian V. Treadwell, Assistant Regional Counsel, Department of Health and Human Services