Sunday, August 30, 2009

1898 Bloodhound Decision Still Raises Relevant Issues

In the decade before 1900, tracking dogs began to be used to find suspects. The courts of the time struggled with the issues of how and when to admit this kind of testimony, which involved a silent witness not available for cross-examination. A case decided by the Kentucky Court of Appeals in 1898 reversed a conviction of two men accused of burning a barn who had, according to the evidence, fled to a tenement building “occupied by a large number of families and individuals, many of whom were of bad repute.” A dog had tracked to this location, and the testimony of other witnesses led to their conviction.

The dog was a major link in the evidence and the Kentucky appellate court held that the reliability of the dog was not sufficiently established. The case was remanded for a new trial. The court noted that bloodhounds had been used in the not too distant past for tracking runaway slaves and were still used to track convicts. A partial concurrence/partial dissent is, in my opinion, even more interesting than the majority opinion in providing an overview of what was changing about the law of dog tracking at the end of the 19th century. I quote the central part of Judge Guffy’s argument:

"I concur in the reversal of the judgment in this case, but dissent from so much of the majority opinion as holds that the trailing or proven trailing of the defendant by a bloodhound can be introduced as evidence upon the trial of such person charged with any crime. It is true that the majority opinion so restricts such proof, and requires so many conditions precedent, that, if the opinion in question should be strictly adhered to, no great injustice would very often result from evidence admitted under the ruling in question. It, however, seems to me, with due respect to the majority opinion, that such a rule of evidence is contrary to all other rules of evidence, and, if not in violation of the letter of the constitution, is manifestly in violation of the spirit, as heretofore expounded by this court. Such a rule seems to me an innovation upon all the heretofore established rules of testimony. The use of bloodhounds was, perhaps, necessary to efficiently and effectually uphold the institution of slavery, as well as to aid in the arrest and capture of persons accused of crime in the Dark Ages. In such cases, however, the object sought was the arrest or capture of known fugitives. If the dog in fact took up and followed the trail of a fugitive, and found him, or aided his pursuers to find him, the object was accomplished, and there could be no mistake as to whether he was the party sought or not; his guilt and right of capture having been theretofore established, and in fact being unquestioned. If the hound took the wrong trail, and brought to bay the wrong party, that fact would be ascertained so soon as the pursuers reached the party, and the utility of the hound in that regard then ceased. It is now proposed to use the hound, not to capture a fugitive, but to ascertain or furnish evidence to convict some citizen of crime. It seems to me that this new use of the bloodhound is a radical departure from the former purposes for which they were used; but, whether this be so or not, it seems to me that neither the life nor liberty of a citizen should be taken away or even jeopardized by the mere fact that some person testified that the hound was well trained to track human beings, etc., and that he had trailed the accused from the scene of the crime to the habitation of the accused, or until he came upon the accused party. There is danger that the effect of the majority opinion will likely be to greatly promote the raising and training of bloodhounds, or hounds that will be called bloodhounds. It is a well-known fact that the owners of hounds, as well as other property, usually hold such property in high esteem; and, as the owner or trainer of hounds will be engaged in the business for pay, it will be greatly to their interest to always have well-trained hounds. In fact, I presume there will be none but trained and expert hounds in a few years; at least such will be the opinion of their owners, for it would be utterly useless to have any other sort. It is common tradition, and doubtless believed by quite a large number of persons, that bloodhounds are capable of wonderful feats of trailing. In fact, the many wonderful stories told of the achievements of bloodhounds (mostly in the imagination of those originating them) have instilled into the minds of quite a number of persons such wonderful notions of the unerring, if not infallible, knowledge and intelligence of the hounds, that the fact that the hound said that a certain person had lately been at the place where the crime was committed would be the most conclusive proof that could be produced."

This kind of skepticism of tracking evidence has remained in the law, perhaps at a higher level than the science now justifies. Pedigo v. Commonwealth, 103 Ky. 41 (1898).

Thursday, August 27, 2009

Tracking Dog Case from 1893

On the night of the killing of Rose Stanback in Alabama in 1893, a man’s tracks were found near her house. Neighbors arrived, one with a tracking dog, which scented to the tracks and followed the scent to the house of one Amos Hodge. Defendant’s counsel objected to the testimony of the man with the dog. The entire decision of the Supreme Court of Alabama consists of the following paragraph:

It is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy. The evidence in this case showed that a dog thus trained was, within a very short time after the homicide, put upon the tracks of the person towards whom all the circumstances strongly pointed as the guilty agent, and that the dog, as if following these tracks, or “trailing,” went to the house of the defendant. It was also in evidence by several witnesses that the tracks found at the scene of the homicide were followed by them thence to the house of the defendant, being measured at various points along the route, and otherwise at each of such points identified as being made by the same shoes as were the tracks at the place of the murder, and that the route thus traced by them was precisely that taken by the dog throughout. On this state of case we are of the opinion that the fact that the dog, trained to track men as shown in the testimony, was put on the tracks at the scene of the homicide, and, “taking the trail,” so to speak, went thence to defendant's house, where he, the defendant, is shown to have been that night after the killing, was competent to go to the jury for consideration by them in connection with all the other evidence as a circumstance tending to connect the defendant with the crime; and, of consequence, that the court committed no error in refusing to exclude it. The ruling of the court on this point is the subject-matter of the only exception reserved. This being without merit, the judgment must be affirmed, and, as affirmed, the sheriff of Escambia county will execute the sentence of death imposed thereunder, as prescribed by law on Friday, July 7, 1893. Affirmed.

A summary of the case in Law Notes from 1904 adds additional facts. Rose was killed by a shotgun blast and a shotgun with one barrel fired was found at the defendant’s house. The wadding and the shot matched wadding and shot found at the murder scene. The dog had tracked over a railroad track and across a street. Witnesses testified that Hodge had threatened to kill Stanback.

Life was simpler in 1893. Hodge v. Alabama, 98 Ala. 10, 13 So. 385 (1893)

Sunday, August 23, 2009

Owning Both a Dog and a Cat: Start Them Young

We have been expecting them to get along for perhaps thousands of years. An Italian woodcut from 1549 shows two dogs and a cat waiting for scraps to fall, or be thrown, from a table (Banchetti Compositioni di Vivende, 1549).  The second picture is the left section of Pietro Lorenzetti's Last Supper in Assisi (c. 1520).

Two scientists at Tel Aviv University recently applied some scientific approaches to looking at the interactions of dogs and cats living in the same households. Neta-li Feuerstein and Joseph Terkel, Interrelationships of Dogs (Canis familiaris) and Cats (Felis catus L.) Living under the Same Roof, Applied Animal Behaviour Science, 113, 150-165 (2008). Feuerstein and Terkel note that both species were attracted by the presence of food in human settlements. Cats served as controllers of vermin in grain supplies, and though this may have begun in Egypt, the oldest evidence of a domesticated cat comes from Cyprus around 9,500 years ago. These authors accept an older date for the emergence of the dog, somewhere between 35,000 and 100,000 years ago. They accept that cats are at an earlier phase of domestication than dogs.

Dogs and cats both belong to the order Carnivora, but their social behavior is quite different. Dogs live and hunt in packs, but cats are mostly solitary hunters. Feuerstein and Terkel conducted their research through questionnaires and observations in the homes of individuals having both species as pets. They hypothesized that an early age of adoption would make things smoother, and that early adoption would also increase the amount of understanding the member of one species might have of the body cues of the other. Direct observations included using fixed situations such as rolling a ball between a dog and a cat to determine whether mutual play would occur, and to observe any dominant behavior. Cat food was placed between the dog and the cat to see what this would bring about. Cat food was used because dogs like the high protein content of cat food.

The researchers noted that certain behaviors had different meanings for each species. Stretching out the forefeet is, for a dog, a sign of amicability and submission, but for the cat it is an aggressive behavior. Lying on the back is submissive for a dog, but aggressive for a cat. Moving the head away is submissive for a dog, but aggressive and dominant for a cat, and horizontal tail wagging is amicable and submissive for a dog, but aggressive and even a hunting posture for a cat.

Dominance behavior patterns of the cat include direct stare, pricked ears, and jumping to a high place (higher than the dog). Aggressive behavior patterns of cats include:

• Growl
• Hiss or spit
• Piloerection (along the back, tail, or both), whiskers may also be directed
• Extracted claws
• Thrashing tail
• Arching the back and tail (creating an inverted U shape of the tail)
• Raised fore-leg
• Attack (lunge, using fore-legs, claws extracted)
• Flattened ears (pointing backwards)
• Lying on the back
• Averted gaze (with enlarged pupils)

Fear and submission behavior patters of cats include:

• Ears turned backwards
• Excessive salivation
• Backing away
• Crouched walk (lowered back, close to the floor)
• Sideways movement
• Tail flattened to the body (sometimes between the hind legs)
• Retreating (to occupy a position as far as possible from the dog
• Grooming (licking and grooming the body)
• Head shake (from side to side)

Play behavior patterns of cats include chirping, purring, kneading (with sheathed claws), moving the tip of the tail, rolling on the ground, and licking the dog’s face or body. For dogs, dominance behavior patterns include tail raised above the level of the back, direct stare, standing tall or stiff walking, pricked ears, lips pooled forward, barking, moving over the cat. Aggressive behavior patters include wrinkled on the upper part of the shout, bared teeth, hackles raised between shoulders and tail, growling, and attacking. Fear and submissive behavior patters include:

• Averted gaze
• Lowered tail
• Crouching walk or posture
• Lying on the back
• Flattened ears
• Lips retracted
• High pitched whine
• High pitched bark
• Backing away
• Yawn
• Licking lips
• Blinking
• Retreating

Play behavior patters include the play bow, play growl, chasing, lying on the back, biting, licking motion in the air or on the cat’s body, and play face (relaxed, lips retracted, ears falling downwards).

The researchers found that cats performed significantly more play behavior and fear or submission towards the dog than the other way around. Female cats exhibited a higher level of both aggression and indifference to the dogs compared with male cats, and a lower level of amicability towards the dogs. Neutered female cats were more often afraid of dogs than intact females. Dogs were found to be more friendly to cats if the dogs if the cat came first in the home. With cats it did not matter which came first. Dogs were less aggressive if they encountered the cats before the dogs were a year old. With cats, they were more friendly if they encountered the dogs before being six months old. In other words, cats lose their ability to adapt to dogs at an earlier age than is true of dogs with respect to cats.

As to the four behaviors in the table above which have opposite meanings for the species, the authors found that the animals read the meaning of the other species “significantly correctly.” They believe that the longer period of adaptability in dogs reflects the fact that dogs, descended from wolves, must develop collaborative hunting skills over a longer period of time, whereas cats become solitary hunters and do not need such social skills.

The authors argue that through adding a dog to a house with a cat, “the cat’s quality of life can be improved.” I would have to note that our cat, Jack, would very much disagree. Jack was ten years old when we adopted Chloe. He had spent most of his life in a coop apartment in Brooklyn Heights that allowed cats, but not dogs (cats don’t have to go into common areas very often). We could only adopt a dog when we moved out of the building. Jack has never taken to Chloe, though he has over time gained the upper hand. She stays clear of him, and he hisses if she gets near. He has become a mean cat, probably reflecting his feeling that things were just fine before she arrived. They have never played together, though Chloe spent years trying to accomplish that. Everyone’s experience is different.

The war between dogs and cats has been a source of wonder, and often amusement, though history. The last panel from a reconstructed Egyptian wall painting, dating from soon after the domestication of cats, shows the mouse pharoah and his army attacking the cat fortress. The dogs aid the mice by pulling pharoah's chariot. Since the mice seem to be winning, it must be assumed that the current pharoah was a dog person (or a mouse person). A. Erman (1894) Life in Ancient Egypt, p. 520. Macmillan & Co. London.

Monday, August 10, 2009

Behavioral Repertoire Differences in Breeds Deserves Further Study

Some dogs still look much like wolves, and some dog populations have continued to interbreed with wolves. This raises the possibility that dogs that are closely genetically to wolves might also be closer behaviorally. Many of the interactions between domestic dogs are similar to the dominance and submission interactions of wolves within their packs. One team considered the question of whether the variation of signaling repertoire between breeds can be correlated with the degree of dissimilarity in overall appearance from the wolf. They also asked whether those breeds with the most restricted repertoires were more commonly using the behavioral patterns emerging earliest in the development of the wolf cub. Deborah Goodwin, John W.S. Bradshaw, and Stephen M. Wickens, “Paedomorphosis Affects Agonistic Visual Signals of Domestic Dogs,” 52(2) Animal Behaviour 297-304 (February 1997).

The breeds this group studied were the Cavalier King Charles Spaniel, Norfolk Terrier, Shetland Sheepdog, French Bulldog, Cocker Spaniel, Large Munsterlander, Labrador Retriever, German Shepherd, Golden Retriever, and Siberian Husky. This list is from least wolf-like to the most wolf-like, as determined by 14 members of the Association of Pet Behaviour Counsellors, a UK organization ( The dogs were observed for “agonistic behavior”--behavior involving disputes--in situations where something was present that could bring about conflict—unfamiliar people, food, toys, shelter, and other dogs. Groups of each breed were studied interacting with each other so as to determine what behaviors would be used by members of each breed. The behaviors detected in each breed group are listed below. Growling and displacing, when they are found, generally occur in less than 20 days. Standing over and the inhibited bit occur within 20 to 30 days. The rest of the behaviors occur after 30 days. As can be seen, the breeds closest to the wolf (the list is again from furthest to closest) are the ones with the broadest behavior repertoire. Submissive behaviors are in italics.

• Cavalier King Charles Spaniel (CK) (growl, displace)
• Norfolk Terrier (NT) (growl, displace, stand erect)
• Shetland Sheepdog (SS) (growl, displace, bare teeth; muzzle lick)
• French Bulldog (FB) (growl, displace, stand erect; look away)
• Cocker Spaniel (CS) (growl, displace, stand over, stand erect, body wrestle; look away)
• Large Munsterlander (LM) (growl, displace, stand over, inhibited bite, stand erect, body wrestle; muzzle lick, crouch)
• Labrador Retriever (LR) (growl, displace, stand over, inhibited bite, stand erect, aggressive gape; muzzle lick, crouch, passive submit)
• German Shepherd (GS) (growl, displace, stand over, inhibited bite, stand erect, body wrestle, aggressive gape, bare teeth; muzzle lick, look away, crouch)
• Golden Retriever (GR) (growl, displace, stand over, inhibited bite, stand erect, body wrestle, aggressive gape, bare teeth, and stare; muzzle lick, look away, submissive grin, passive submit)
• Siberian Husky (SH) (growl, displace, stand over, inhibited bite, stand erect, body wrestle, aggressive gape, bare teeth, stare; muzzle lick, look away, crouch, submissive grin, passive submit, active submit)

It would have been better had the genetic similarity to the wolf been used rather than a group of pet behavior specialists, but perhaps that is a future research project. Nevertheless, the result was impressive: the dogs that were the least wolf-like from some perspectives also exhibited the fewest wolf-like patterns of agonistic behavior. Thus, dogs become morphologically more separated from wolves, and arguably showing a higher level of pedomorphosis (retention of juvenile traits into adulthood), they have more limited signaling repertoires, at least in situations involving aggression and submission.

The researchers noted that three of the four gundog breeds—-Cocker Spaniels, Labrador and Golden Retrievers—-retained more wolf-type behavior patterns than their appearance might suggest. They argue that the purpose for which the gundog breeds were developed may have required keeping a fuller range of ancestral behavior patterns than the two breeds derived from shepherding stock German Shepherds and Shetland Sheepdogs. It has been argued that the German Shepherd was developed from shepherding stock with the deliberate intention of producing a physically wolf-like animal, (M. Willis, The German Shepherd Dog: A Genetic History (Witherby 1991)), yet it displayed fewer wolf-type signals than the golden retriever. The researches suspect that once a behavior has been lost from the breed’s repertoire, “it cannot be reconstructed merely by altering the physical appearance of the breed.”

Another observation from the data was that dogs showed less submissive behavior than is found in wolves. They argue that the exhibition of escalated aggression towards other dogs is likely to be less costly than would be the case with wolves because humans intervene to stop conflicts between dogs and the physical cost of failing to display submissive behavior is reduced, allowing for such behaviors to be dropped from the repertoire.

A study published in 2009 looking at the social signaling of puppies in litters of some of the same breeds considered whether the puppies compensated for the morphological limitations on signaling (e.g., not being able to direct their ears because the breed has floppy ears) by more frequent use of those signals that they could make. They found no evidence for this. Keven J. Kerswell, Pauleen Bennett, Kym L. Butler, and Paul H. Hemsworth, “The Relationship of Adult Morphology and Early Social Signalling of the Domestic Dog (Canis familiaris),” 81 Behavioural Processes 376-382 (2009). Nor did they find any new types of signals replacing those that a breed had lost. The researchers acknowledged that “communication modalities, other than those that can be detected by human visual and auditory observation,” might yet exist. It is possible, perhaps probable, that dogs whose shape has been significantly altered from that of the ancestral wolf just have simpler behavior patterns.

This does not mean that King Charles Spaniels are dumb and Siberian Huskies are smart. A recent review of the literature on dogs’ ability to follow human pointing gestures concluded that no reviewed studies had established significant differences between breeds in their ability to understand pointing gestures. Nicole R. Dorey, Monique A.R. Udell, Clive D.L. Wynne, “Breed Differences in Dogs Sensitivity to Human Points: A Meta-analysis,” 81(3) Behaviour 409-415 (July 2009).

Monday, August 3, 2009

Claiming Service Animal Status After a Condo Board Refuses to Change a No-Pets Policy Requires Thinking Strategically

Soon after I began doing research on service and support dog access law I realized that by far the largest category of legal decisions are disputes over dogs in apartment buildings and other housing environments where there is a no-pets policy. It makes sense that these cases often lead to litigation. If a handicapped person tries to take a service dog into a restaurant and is refused, refusal may lead to a lawsuit, but people don’t always want to take the time to enforce their rights. A few letters will often change the restaurant’s policy and perhaps lead to some compensation, assuming the refusal wasn’t based on the fact that the dog really wasn’t a service dog to begin with. The same applies to transportation. People put up with a lot. But you can’t be so flexible about where you live. If your dog is a service or support animal, you’re going to have to fight to keep it with you. See my recent article on this: Service and Support Animals in Housing Law, by John Ensminger and Frances Breitkopf, GP/Solo Magazine (July/August 2009).

A recent federal district court case from Florida shows one type of housing case that seems to happen a lot. In Hawn v. Shoreline Towers Phase I Condominium Association, Inc., 2009 WL 691378 (ND Fla. 2009), Davis Hawn bought a condo in 2004, knowing the Association had a no-pets policy. Nevertheless, he obtained a Labrador Retriever named Booster about a year later and proposed to the condo board that it change its policy to allow pets. He felt that Booster would win everyone over. He did not at first claim that Booster was a service animal and the dog was a puppy when Hawn acquired him in any case. The Association took no action against him, but did not change its policy, and in 2006, he wrote another letter, now claiming that he was disabled and that Booster had been certified as a service animal. Hawn asserted that he had trouble walking and that the dog helped him with this and in overcoming the trauma of an attack that he suffered from the stepson of a friend. He said that Booster brought and removed his shoes and socks, opened the refrigerator and brought him water, pulled him out of his chair, and brought him his phone in case of an emergency or panic attack. The dog also comforted him after panic attacks. A psychologist wrote a letter for Hawn prescribing a service animal to help him with his “emotionally crippling disability.” The psychologist later admitted, however, that Hawn wrote much of it for him. Another letter was from a chiropractor who recommended that Hawn get a support animal to assist him with his movement disability. Hawn also wrote most of this letter for the chiropractor to sign. The court found the letters essentially useless as evidence.

At an Association board meeting, Hawn asked to speak to the board concerning his request to keep his “service animal.” The request was granted and Hawn told those present about his need for the dog. Sometime after the meeting, the general manager of the condo told Hawn that the board’s attorney needed more information, including documentation to support Hawn’s disabilities and the qualifications of the psychologist and the chiropractor. Hawn did not respond to this letter. The second letter, reproduced in the court’s decision, displays an understanding of the housing law regarding service and support animals. Hawn should probably have realized that he was being asked to conform his claim to legal requirements, but he ignored this letter as well. When Hawn was served with an eviction order, he filed the lawsuit.

The defendants—the Association and members of the board—moved for summary judgment. Hawn effectively argued that the defendants had violated the Fair Housing Act by refusing to make a reasonable accommodation. The district court reviewed federal and state law regarding reasonable accommodation, and concluded that Hawn had failed to establish that he was disabled or handicapped within the meaning of the FHA, or that the defendants knew an accommodation was necessary to provide him an equal opportunity to use and enjoy his dwelling. The court put the blame for this on Hawn, who had ignored both letters from the board. Hawn proceeded to get more evidence for his claim, some of which was much better than the two initial letters, but the court said he was too late and that the only relevant time period for deciding if Hawn was disabled was when the alleged discrimination occurred in September 2006 when the board finally denied Hawn’s request to keep Booster in his unit. Hawn should have responded to the board’s letters and gotten his information together at that time.

In considering the summary judgment motion of the condo, the court held that “no reasonable juror could conclude that the board knew the plaintiff was handicapped when it made the decision to deny his request.” The court saw this case as analogous to Prindable v. Association of Apartment Owners of 2987 Kalakaua, a case decided by the federal district court in Hawaii where a tenant had also ignored requests from an apartment owner for more information. The Florida district court concluded that there was no evidence that the Association would have refused to accommodate Hawn had he provided adequate documentation and granted summary judgment. Hawn was out of luck. The lesson of the case, for Florida and elsewhere, is that if a tenant obtains a dog that is not a service dog but trains it to become one, he or she should pay attention to the details of establishing the animal’s legitimate status, and should be cooperative with the landlord in supplying necessary information. A sympathetic court might overlook some lapses, but no one should ever bank on judicial benevolence.

The decision of the Northern District of Florida in Hawn was affirmed by the 11th Circuit. 347 Fed.Appx. 464, 2009 WL 3004036 (2009).