The transition from one year to another is a time to remember. Perhaps because I have recently made contact with some people from Pullman, Washington, the town where I lived the first sixteen years of my life, something came back to me.
The memory concerns a man whose last name was, I think, Meade or Means, but whose first name was John.
My father was the Chairman of the Department of Animal Science at Washington State University (actually it was called Washington State College during our period there). Several times each year my parents gave a buffet breakfast for the faculty and graduate students of the Department, to which they would invite stockmen from the area, which included parts of Washington, Oregon, and Idaho. My father believed that the graduate students should meet men who had spent their lives with farm animals, which in that part of the world meant mostly cattle, though there were some sheep and swine operations as well.
At one of these breakfasts a rancher stood by himself before one of my father's bookcases, occasionally greeting one of the older stockmen who came to the breakfast, but he made no attempt to circulate. He did not take off his hat, sometimes a habit of the older cattlemen. I was a little afraid of him, and my only interaction with him consisted of a nod he gave me when I came within a few feet of him to fill coffee cups.
After everyone had gone, I asked my father about the man with the hat. "John Meade," my father said. "I've never met him before, though we've invited him several times. I didn't think he would come."
"Why?" I asked.
"He doesn't talk much, you noticed? He's probably the most famous rancher in northern Idaho."
"Why?"
"What I heard was that there was a land dispute between him and another rancher. Their fathers had staked claims along the Snake River around the turn of the century. The claims overlapped somehow, which led to a range war and a couple of cowhands were wounded and one was killed, a Nez Perce who was a friend of John’s father. That brought in other people and it went on for a long time, years, decades, sometimes quiet, sometimes not. After the war started, the county lawman went off to join the Army and there was no one to keep the peace. John and the other rancher decided to settle the matter once and for all the old fashioned way. They met on the banks of the Snake with pistols in holsters, each with a witness. John was the one who walked away."
"When?" I asked.
"1942, 1943, I suppose."
I heard nothing more about John for two years, when one afternoon my father got a call from the shepherd of the college's sheep farm, five miles from Pullman. Claude Coke, the shepherd, had several collies and one of them had started behaving strangely. Claude, whom my father always called the Scot, locked the dog in a shed and fed it through a space under the door. Then it got out somehow and killed two sheep. Claude tried to shoot it but missed and the now clearly rabid dog was running around the farm but staying away from people.
My father called John, who said he would come the next morning. Just after dawn we drove to the sheep farm but John had already shot the dog. It was sixty or seventy feet from the road in a field of hay stubble. It had snowed overnight and the white belly of the dog blended into the snow. I remember several tufts of golden and brown hair on the dog's tail, pointed oddly skyward, blowing in a light breeze.
I did not see John's rifle, which he had probably put back in his truck. I wanted to go with my father to talk to the two men but he told me to wait in the Buick. When my father got close to them I saw Claude's back heave. My father put his hand on Claude's shoulder, shook John's hand, and walked back to the car.
"It's better that we leave. Claude liked the dog. He wouldn't want you to see him this way."
We drove away. Through the back window I could see John with the hat he never took off, and Claude, their backs still to us. I never saw John again.
"Claude said that John got him with one shot," my father said at the dinner table that night. "One shot with a .22 from the side of the road. Can you imagine?"
"We shouldn't talk about it," my mother said.
It was New Year's Day, 1959.
Corrections From a Reader. The following email came from a reader who asked to be called Rachel N. Admittedly I made no effort to find any source beyond my memory for the events described, so I suspect that her corrections given are to be accepted.
Dear Mr. Ensminger,
I have not read your blog before but was surprised when a friend from Pullman sent me an e-mail about your account of the duel that you say took place on the Snake River. That is the first of several mistakes in your or your father's account. The duel took place on the Clearwater River, a tributary of the Snake. Although I did not hear about the duel until ten or more years after you did I believe what I heard is more accurate than what you have written. My grandfather Jacob Schloss was there and was the witness for John Moody, whom you write incorrectly was called Meade or Means.
An even bigger error is the date you give for this event. It took place in 1932 when according to my grandfather there was very little law in northern Idaho. Nobody needed to go off to war for a duel to take place in those parts back then.
The name of the other man was Ulf Lindstrand, a Swede who was both a miner and rancher at different times and well known for his habit of picking fights, particularly if drunk, which he often was according to my grandfather, who knew both men.
My grandfather, Jacob Schloss, had a general store that everyone north of the Clearwater used at one time or another but he did not know either man well enough to serve as a second. This came about because the man who was supposed to be Moody's witness did not show up at my grandfather's store the morning of the duel. After a time Moody told Jacob to close the store and come with him to watch something along the Clearwater. He did not say what it was at first but John Moody was not the sort of man you said no to.
My grandfather was one of the few Jews in northern Idaho at the time (except for a few professors in Moscow that he always called "conversos") and when he learned the purpose of his being asked to come with Moody he felt obliged to tell Moody he was Jewish and did not know if a court would give full weight to his testimony as a witness. Moody told Jacob not to worry because it was Lindstrand who was going to die.
My grandfather did not describe the duel other than to say that Lindstrand fired quickly and twice at about thirty feet and missed both times but Moody took careful aim and hit Lindstrand in the chest with his only shot. Lindstrand died before Lindstrand's witness came back with a doctor.
Jacob Schloss did not speak of this for many years, not even to my father. Grandfather told the family about it in 1972 when I was 12. Jacob was always worried that he could be charged as some kind of accessory though he said that no one in northern Idaho was ever inclined to cause trouble for John Moody. Moody had died in 1971 and grandfather must have felt that it would be too late for any legal problems if his role became known.
When he made enough money Jacob moved to Portland in 1949 and opened a dry goods store which he ran until he died at 92 in 1982.
Rachel N., Atlanta
Tuesday, December 28, 2010
Saturday, December 18, 2010
Sniffing and Sampling Only One Spot at Fire Scene Gets Arson Conviction Thrown Out, or How Not to Respond to Canine Evidence
I don’t know if anyone keeps statistics comparing the type of evidence and the percentage of cases where ineffective assistance of counsel is eventually argued, but if they do I’d be willing to bet that where canine evidence is a significant part of the prosecution’s case, claims of ineffective counsel after convictions are very high. Far too often lawyers, jurors, and judges take the handler’s testimony as gospel. One judge who doesn’t is Judge Nancy Gertner of the federal district court of Massachusetts.
In 2006, James Hebshie was convicted of arson for a 2001 fire in a building where he had a convenience store in Taunton, Massachusetts, and sentenced to 15 years in prison. After exhausting his appeals, Hebshie filed a petition for a writ of habeas corpus based on ineffective assistance of counsel. Judge Gertner analyzed the evidence and delivered a withering condemnation of the lawyers who had represented Hebshie in the criminal trial. The judge's analysis provides something of a manual on how NOT to represent someone accused of arson where a significant part of the government's case depends on the alert of an accelerant-detection dog.
Fire and Investigation
Hebshie’s store, Main Street Lottery & News Store, was one of three businesses a building on Main Street in Taunton, Massachusetts. Hebshie left the store at 1:37 on Saturday, April 21, 2001, and a motion detector alerted within the store at 1:44 p.m., seven minutes later. A police officer noticed smoke coming from the store about the same time. An officer of the Taunton Fire Department entered the building and moved towards an “orange glow” at the back of the store. The fire had spread and it took several hours to put it out.
Burn patterns suggested to a fire investigator that the fire had started in the left-hand wall of the store. An accelerant-detection dog, Billy, was brought to the location by his handler, Sergeant Lynch of the Massachusetts State Police. Billy alerted to one spot along the wall where the fire investigator thought the fire had begun, but this was the only place where Billy was taken because it was the only place that was safe. A carpet sample was taken for laboratory analysis from the spot. The dog was not taken to the basement or to any other areas in the building, nor were samples taken from other areas for laboratory analysis. Laboratory analysis identified the sample as containing a light petroleum distillate. Further tests that might have identified more specific chemicals were not performed.
The day after the fire, the fire investigator released the building to the insurance company, which soon demolished it. An insurance company investigator had intended to take pictures in the basement but the demolition happened too quickly.
Pre-Trial Developments
About a year after the fire, Hebshie was indicted for arson, mail fraud, and use of fire to commit a felony. Assigned counsel hired two forensic experts, a fire protection engineer, John Titus, and a chemist, Michael Higgins. In 2005, Hebshie replaced assigned counsel with counsel he had retained, John T. Spinale, who hired his son as co-counsel. Higgins was not used by the Spinales but Titus was. Titus testified that he warned the Spinales about weaknesses in the government’s case, including the fact that an accelerant-detection dog might alert to chemicals that are part of the ambient environment. Titus also argued that the laboratory should have been asked to attempt to identify the specific light petroleum distillate and that samples should have been taken from other places in the building. He told the Spinales that the laboratory test was probative only if it identified an accelerant that was not present elsewhere in the store.
Let the Judge Gertner’s disgust speak for itself:
"Despite these warnings, the Spinales never filed any pretrial motions (except motions to obtain incidental relief from Hebshie's pretrial release). There were no motions in limine, no motions directed to the expert testimony whatsoever. They never requested a Daubert hearing to challenge the bona fides of the Domingos investigation or the canine evidence, never moved in limine to exclude the laboratory analysis because of the generality of its conclusions and the lack of a control sample."
Criminal Trial
The government’s theory at the criminal trial was that Hebshie burned down his store to collect on a $30,000 insurance policy. Hebshie had lost his license to sell lottery tickets because he owed $5,000. He was trying to sell the store at the time of the fire. The defense theory was that the fire had started accidentally.
Fire Investigator. Sergeant David Domingos, who was soon on the fire scene, ruled out the two other stores in the building as possible points of origin, finding that the heavy damage and charring, the damage near the floor level, and a V pattern on the left-hand wall of the convenience store all pointed to this as the point of origin. Domingos admitted on cross-examination that this area was also surprisingly intact. He also admitted that V patterns can have different origins and that the V pattern was hard to tell in any case. Domingos discounted the theory that the fire could have started in the basement though his report did not mention the basement. He also described a “burnt toast” smell being mentioned by several witnesses, including the owner of the jewelry store in the building, about an hour before the fire and acknowledged that this could have been due to an electrical problem. He could not explain why no control samples taken from other parts of the store or the building.
A fire department official testified that one of the firefighters had a heart attack trying to put out the fire, which was not objected to by the Spinales, but should have been because it was probably both prejudicial and irrelevant.
Dog Handler. Sergeant Douglas Lynch testified about his experience as a dog handler and about Billy, the dog in this case, who had died before the trial. He said that Billy was “visibly more confident in her alerting on something than on other occasions.” In cross-examination, Lynch testified Billy had been 97% accurate, and said that even when she was wrong it was the handler’s error rather than hers. No reports or tests concerning the dog were introduced and the Spinales did not challenge the accuracy of the statistic or cross-examine concerning false negatives or other issues that might have been raised from scientific literature. The trial judge almost asked for a challenge on the canine testimony. The following is from the trial transcript:
THE COURT: I wanted to make sure I didn’t miss anything here, there was no challenge to the canine evidence, to the dog?
MR. SPINALE, JR.: No.
In the convenience store fire, Lynch only took Billy to the area where Domingos concluded the fire had started, which he described as the more “intact portion” of the store. Billy gave a strong alert at that location and Lynch took a sample from that area, but not from other areas, apparently because Domingos had not requested that he take comparison samples.
Laboratory Technician. John Drugan, a laboratory technician, testified that he used a gas chromatograph flame ionization detector to class the sample as having a light petroleum distillate. Drugan admitted that using a comparison sample is “preferred practice” but the Spinales did not challenge the reliability or admissibility of the test and even stipulated to the lab results. In the habeas hearing that followed years later, Judge Gertner wrote that "a reasonably competent counsel would have challenged the test results of 'light petroleum distillate' and their characterization as accelerants."
Fire Protection Engineer. John Titus, testifying for the defense, said that the left-hand wall was the only wall of the store that had not collapsed. He pointed to burn patterns suggesting the fire began in the basement and that the fire broke into the convenience store after moving through the walls. He could not present evidence of the basement’s condition and there were no photographs, samples, or notes about the basement in Domingos’ report.
Closing Arguments. The government closed by arguing that Billy had alerted to the left-hand wall to the exclusion of other areas, which was not correct. The Spinales did not object to this mis-characterization of the handler’s testimony. Indeed, the elder Spinale described Domingos as “very qualified” and said that Lynch and Billy were “impressive.” He also said that there was not much difference between the experts for each side, probably undermining the distinctions his expert had made.
Verdict and Appeal
The jury found Hebshie guilty on all counts and he was sentenced to 15 years in prison. His conviction was affirmed by the First Circuit. U.S. v. Hebshie, 549 F.3d 30 (1st Cir. 2008). This appeal, however, had little to do with the arson case and was mostly about another aspect of the conviction for mail fraud regarding Hebshie’s attempt to collect insurance on the store.
Habeas Corpus
Hebshie then sought to establish that his counsel’s performance was deficient, resulting in prejudice. The competence of the Spinales was now the focus of the testimony and a major issue was why they had not brought a Daubert challenge to the cause-and-origin testimony and the arson evidence.
Judge Gertner found the Spinales’ explanations of their trial strategy so deficient that she was quite blunt in criticizing them: “I do not credit Jay Spinale's testimony at all. He admitted that he had taken pains not to prepare for the evidentiary hearing in any way; he had reviewed nothing.”
Insurance Company Investigator. Daniel Cronin, the insurance investigator, took one photograph that John Titus, did not see until the habeas corpus hearing. Its significance was summarized by the Judge Gertner:
"Cronin did, however, take one photograph of the stairs leading down to the basement….In fact, it was a photograph with a fuller view of the stairwell. Spinale never asked for any of the photographs from the insurance investigation. Titus testified that he had never seen the insurance photographs until the evidentiary hearing. And the photographs were significant. They showed that the lintel, the bar by the basement staircase that supports the floor, was charred and had significant soot deposits on it, indicating that fire came out of the basement." (emphasis added)
A new witness, John Lentini, a forensics arson expert, testified that the government’s theory of the fire’s movement was scientifically impossible. He believed it was far more likely that the fire began in the basement.
Canine Evidence. In the habeas hearing, the canine evidence was considered again. Judge Gertner noted that the National Fire Protection Association’s Guide for Fire and Explosives Investigations, referred to as NFPA 921 by firemen and investigators, says that arson dogs are tools to narrow the search area for ignitable liquids. Titus testified that he had told the Spinales about weaknesses in canine evidence and provided them with research indicating dogs had varying levels of reliability depending on the substances in a sample. He pointed out to the Spinales that some substances arson dogs alert to are actually common in the environment. Lentini said that the convenience that the store sold glue and lighter fluid that could be detected by a dog. He quoted NFPA 921:
"The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerants. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present."
Lentini noted that the area where the carpet sample was taken from was "in very good shape for a carpet that supposedly had ignitable liquid put on it."
Judge Gertner's Analysis
On an ineffective assistance of counsel claim, the applicant must show that his counsel's performance was deficient and that he suffered prejudice as a result. Judge Gertner did not find a complete failure by the defense counsel, though noting that "candidly, counsel's performance came close," but found most fault in counsel's failure to move for a Daubert hearing or attempt to exclude the arson evidence.
Daubert. Scientific evidence must not only be relevant, but reliable, and, under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court must conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Such a hearing should have been requested here. Judge Gertner stated:
"Despite ample reasons for defense counsel to be on notice of serious problems with the government's expert evidence--from Titus, from Muse, arguably from their own investigation--they did not request a Daubert hearing as to anything. They knew that there were problems in the Domingos cause-and-origin investigation and the Drugan laboratory analysis that undermined their validity; they knew that the failure to take a control sample in this case was inconsistent with the scientific method and NFPA 921 ...(governing collection of comparison samples); they knew that the investigation of the basement was inadequate, or at least, not fully documented; and they knew or should have known that the canine evidence was supposed to be admitted for only a limited purpose, namely, assisting in the selection of samples that have a 'higher probability of laboratory confirmation than samples selected without the canine's assistance,' and that testimony beyond those purposes was potentially prejudicial...." (emphasis in original)
The judge described the Spinales has having demonstrated a "lack of preparation, even thought," and cited substantial legal and scientific literature that the Spinales should have become at least somewhat familiar with regarding arson evidence. Further:
"Spinale could not have reasonably believed that a Daubert hearing was waived when the Court asked him over and over again if he wanted such a hearing-even mid-trial. Indeed, the government's claim that Spinale did not move for a hearing because he feared the Court would be aggravated is absurd. This Court explicitly invited the challenge so that critical scientific issues could be hashed out outside of the presence of the jury."
The judge cited a federal district court case from West Virginia, which held that "the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described in the NFPA guide." U.S. v. Myers, 2010 WL 2723196 (S.D.W.Va. 2010). The Spinales should have objected "to all statements that suggested that the alert had any validity beyond helping the fire investigators to choose samples."
The Spinales should have also objected to the handler's "truly extravagant testimony about Billy, the dog, her powers, her accuracy, her role in accelerant-detection in general and in this case, and to the government's closing." The judge referred to scientific articles indicating substantial error rates in canine alerts, which were never raised by the Spinales.
Prejudice. In describing how Hebshie was prejudiced by the Spinales' representation, Judge Gertner said that there was a reasonable probability the criminal trial court would have granted a Daubert hearing if it had been requested, and from such a hearing or on objection would have excluded the laboratory accelerant sample test, would have excluded the canine evidence "or severely limited it," and would have reduced the significance of the cause-and-origin testimony. Without this evidence, there would essentially "have been no case at all," making it reasonably probable that the outcome of the trial would have been different.
The U.S. Attorney's office has filed a notice of appeal. Hebshie will appear at a status conference in federal court in Boston on December 29.
Conclusion
There is something of a conceit in many TV crime shows that lawyers in private law firms must come in and save the day from overworked and less competent legal services lawyers. This has been an ongoing theme in The Good Wife, a show with excellent writers, who are either lawyers themselves or whose work must be checked by lawyers. Nevertheless, sometimes the client should stick with the court-appointed lawyer, as may have been true here.
I should point out that though this case was a poor example of accelerant detection canine procedure, there are many cases where the alerts of such dogs have been carefully considered and admitted. This is not the place to review a broad range of accelerant detection cases, but that is something I will do in the book I am working on with the help of Tadeusz Jezierski, L.E. Papet, John Grubbs, Greg Keller, and others regarding canine forensics and law.
U.S. v. Hebshie, 2010 WL 4722040 (D.Mass. 2010).
In 2006, James Hebshie was convicted of arson for a 2001 fire in a building where he had a convenience store in Taunton, Massachusetts, and sentenced to 15 years in prison. After exhausting his appeals, Hebshie filed a petition for a writ of habeas corpus based on ineffective assistance of counsel. Judge Gertner analyzed the evidence and delivered a withering condemnation of the lawyers who had represented Hebshie in the criminal trial. The judge's analysis provides something of a manual on how NOT to represent someone accused of arson where a significant part of the government's case depends on the alert of an accelerant-detection dog.
Fire and Investigation
Hebshie’s store, Main Street Lottery & News Store, was one of three businesses a building on Main Street in Taunton, Massachusetts. Hebshie left the store at 1:37 on Saturday, April 21, 2001, and a motion detector alerted within the store at 1:44 p.m., seven minutes later. A police officer noticed smoke coming from the store about the same time. An officer of the Taunton Fire Department entered the building and moved towards an “orange glow” at the back of the store. The fire had spread and it took several hours to put it out.
Burn patterns suggested to a fire investigator that the fire had started in the left-hand wall of the store. An accelerant-detection dog, Billy, was brought to the location by his handler, Sergeant Lynch of the Massachusetts State Police. Billy alerted to one spot along the wall where the fire investigator thought the fire had begun, but this was the only place where Billy was taken because it was the only place that was safe. A carpet sample was taken for laboratory analysis from the spot. The dog was not taken to the basement or to any other areas in the building, nor were samples taken from other areas for laboratory analysis. Laboratory analysis identified the sample as containing a light petroleum distillate. Further tests that might have identified more specific chemicals were not performed.
The day after the fire, the fire investigator released the building to the insurance company, which soon demolished it. An insurance company investigator had intended to take pictures in the basement but the demolition happened too quickly.
Pre-Trial Developments
About a year after the fire, Hebshie was indicted for arson, mail fraud, and use of fire to commit a felony. Assigned counsel hired two forensic experts, a fire protection engineer, John Titus, and a chemist, Michael Higgins. In 2005, Hebshie replaced assigned counsel with counsel he had retained, John T. Spinale, who hired his son as co-counsel. Higgins was not used by the Spinales but Titus was. Titus testified that he warned the Spinales about weaknesses in the government’s case, including the fact that an accelerant-detection dog might alert to chemicals that are part of the ambient environment. Titus also argued that the laboratory should have been asked to attempt to identify the specific light petroleum distillate and that samples should have been taken from other places in the building. He told the Spinales that the laboratory test was probative only if it identified an accelerant that was not present elsewhere in the store.
Let the Judge Gertner’s disgust speak for itself:
"Despite these warnings, the Spinales never filed any pretrial motions (except motions to obtain incidental relief from Hebshie's pretrial release). There were no motions in limine, no motions directed to the expert testimony whatsoever. They never requested a Daubert hearing to challenge the bona fides of the Domingos investigation or the canine evidence, never moved in limine to exclude the laboratory analysis because of the generality of its conclusions and the lack of a control sample."
Criminal Trial
The government’s theory at the criminal trial was that Hebshie burned down his store to collect on a $30,000 insurance policy. Hebshie had lost his license to sell lottery tickets because he owed $5,000. He was trying to sell the store at the time of the fire. The defense theory was that the fire had started accidentally.
Fire Investigator. Sergeant David Domingos, who was soon on the fire scene, ruled out the two other stores in the building as possible points of origin, finding that the heavy damage and charring, the damage near the floor level, and a V pattern on the left-hand wall of the convenience store all pointed to this as the point of origin. Domingos admitted on cross-examination that this area was also surprisingly intact. He also admitted that V patterns can have different origins and that the V pattern was hard to tell in any case. Domingos discounted the theory that the fire could have started in the basement though his report did not mention the basement. He also described a “burnt toast” smell being mentioned by several witnesses, including the owner of the jewelry store in the building, about an hour before the fire and acknowledged that this could have been due to an electrical problem. He could not explain why no control samples taken from other parts of the store or the building.
A fire department official testified that one of the firefighters had a heart attack trying to put out the fire, which was not objected to by the Spinales, but should have been because it was probably both prejudicial and irrelevant.
Dog Handler. Sergeant Douglas Lynch testified about his experience as a dog handler and about Billy, the dog in this case, who had died before the trial. He said that Billy was “visibly more confident in her alerting on something than on other occasions.” In cross-examination, Lynch testified Billy had been 97% accurate, and said that even when she was wrong it was the handler’s error rather than hers. No reports or tests concerning the dog were introduced and the Spinales did not challenge the accuracy of the statistic or cross-examine concerning false negatives or other issues that might have been raised from scientific literature. The trial judge almost asked for a challenge on the canine testimony. The following is from the trial transcript:
THE COURT: I wanted to make sure I didn’t miss anything here, there was no challenge to the canine evidence, to the dog?
MR. SPINALE, JR.: No.
In the convenience store fire, Lynch only took Billy to the area where Domingos concluded the fire had started, which he described as the more “intact portion” of the store. Billy gave a strong alert at that location and Lynch took a sample from that area, but not from other areas, apparently because Domingos had not requested that he take comparison samples.
Laboratory Technician. John Drugan, a laboratory technician, testified that he used a gas chromatograph flame ionization detector to class the sample as having a light petroleum distillate. Drugan admitted that using a comparison sample is “preferred practice” but the Spinales did not challenge the reliability or admissibility of the test and even stipulated to the lab results. In the habeas hearing that followed years later, Judge Gertner wrote that "a reasonably competent counsel would have challenged the test results of 'light petroleum distillate' and their characterization as accelerants."
Fire Protection Engineer. John Titus, testifying for the defense, said that the left-hand wall was the only wall of the store that had not collapsed. He pointed to burn patterns suggesting the fire began in the basement and that the fire broke into the convenience store after moving through the walls. He could not present evidence of the basement’s condition and there were no photographs, samples, or notes about the basement in Domingos’ report.
Closing Arguments. The government closed by arguing that Billy had alerted to the left-hand wall to the exclusion of other areas, which was not correct. The Spinales did not object to this mis-characterization of the handler’s testimony. Indeed, the elder Spinale described Domingos as “very qualified” and said that Lynch and Billy were “impressive.” He also said that there was not much difference between the experts for each side, probably undermining the distinctions his expert had made.
Verdict and Appeal
The jury found Hebshie guilty on all counts and he was sentenced to 15 years in prison. His conviction was affirmed by the First Circuit. U.S. v. Hebshie, 549 F.3d 30 (1st Cir. 2008). This appeal, however, had little to do with the arson case and was mostly about another aspect of the conviction for mail fraud regarding Hebshie’s attempt to collect insurance on the store.
Habeas Corpus
Hebshie then sought to establish that his counsel’s performance was deficient, resulting in prejudice. The competence of the Spinales was now the focus of the testimony and a major issue was why they had not brought a Daubert challenge to the cause-and-origin testimony and the arson evidence.
Judge Gertner found the Spinales’ explanations of their trial strategy so deficient that she was quite blunt in criticizing them: “I do not credit Jay Spinale's testimony at all. He admitted that he had taken pains not to prepare for the evidentiary hearing in any way; he had reviewed nothing.”
Insurance Company Investigator. Daniel Cronin, the insurance investigator, took one photograph that John Titus, did not see until the habeas corpus hearing. Its significance was summarized by the Judge Gertner:
"Cronin did, however, take one photograph of the stairs leading down to the basement….In fact, it was a photograph with a fuller view of the stairwell. Spinale never asked for any of the photographs from the insurance investigation. Titus testified that he had never seen the insurance photographs until the evidentiary hearing. And the photographs were significant. They showed that the lintel, the bar by the basement staircase that supports the floor, was charred and had significant soot deposits on it, indicating that fire came out of the basement." (emphasis added)
A new witness, John Lentini, a forensics arson expert, testified that the government’s theory of the fire’s movement was scientifically impossible. He believed it was far more likely that the fire began in the basement.
Canine Evidence. In the habeas hearing, the canine evidence was considered again. Judge Gertner noted that the National Fire Protection Association’s Guide for Fire and Explosives Investigations, referred to as NFPA 921 by firemen and investigators, says that arson dogs are tools to narrow the search area for ignitable liquids. Titus testified that he had told the Spinales about weaknesses in canine evidence and provided them with research indicating dogs had varying levels of reliability depending on the substances in a sample. He pointed out to the Spinales that some substances arson dogs alert to are actually common in the environment. Lentini said that the convenience that the store sold glue and lighter fluid that could be detected by a dog. He quoted NFPA 921:
"The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerants. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present."
Lentini noted that the area where the carpet sample was taken from was "in very good shape for a carpet that supposedly had ignitable liquid put on it."
Judge Gertner's Analysis
On an ineffective assistance of counsel claim, the applicant must show that his counsel's performance was deficient and that he suffered prejudice as a result. Judge Gertner did not find a complete failure by the defense counsel, though noting that "candidly, counsel's performance came close," but found most fault in counsel's failure to move for a Daubert hearing or attempt to exclude the arson evidence.
Daubert. Scientific evidence must not only be relevant, but reliable, and, under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court must conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Such a hearing should have been requested here. Judge Gertner stated:
"Despite ample reasons for defense counsel to be on notice of serious problems with the government's expert evidence--from Titus, from Muse, arguably from their own investigation--they did not request a Daubert hearing as to anything. They knew that there were problems in the Domingos cause-and-origin investigation and the Drugan laboratory analysis that undermined their validity; they knew that the failure to take a control sample in this case was inconsistent with the scientific method and NFPA 921 ...(governing collection of comparison samples); they knew that the investigation of the basement was inadequate, or at least, not fully documented; and they knew or should have known that the canine evidence was supposed to be admitted for only a limited purpose, namely, assisting in the selection of samples that have a 'higher probability of laboratory confirmation than samples selected without the canine's assistance,' and that testimony beyond those purposes was potentially prejudicial...." (emphasis in original)
The judge described the Spinales has having demonstrated a "lack of preparation, even thought," and cited substantial legal and scientific literature that the Spinales should have become at least somewhat familiar with regarding arson evidence. Further:
"Spinale could not have reasonably believed that a Daubert hearing was waived when the Court asked him over and over again if he wanted such a hearing-even mid-trial. Indeed, the government's claim that Spinale did not move for a hearing because he feared the Court would be aggravated is absurd. This Court explicitly invited the challenge so that critical scientific issues could be hashed out outside of the presence of the jury."
The judge cited a federal district court case from West Virginia, which held that "the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described in the NFPA guide." U.S. v. Myers, 2010 WL 2723196 (S.D.W.Va. 2010). The Spinales should have objected "to all statements that suggested that the alert had any validity beyond helping the fire investigators to choose samples."
The Spinales should have also objected to the handler's "truly extravagant testimony about Billy, the dog, her powers, her accuracy, her role in accelerant-detection in general and in this case, and to the government's closing." The judge referred to scientific articles indicating substantial error rates in canine alerts, which were never raised by the Spinales.
Prejudice. In describing how Hebshie was prejudiced by the Spinales' representation, Judge Gertner said that there was a reasonable probability the criminal trial court would have granted a Daubert hearing if it had been requested, and from such a hearing or on objection would have excluded the laboratory accelerant sample test, would have excluded the canine evidence "or severely limited it," and would have reduced the significance of the cause-and-origin testimony. Without this evidence, there would essentially "have been no case at all," making it reasonably probable that the outcome of the trial would have been different.
The U.S. Attorney's office has filed a notice of appeal. Hebshie will appear at a status conference in federal court in Boston on December 29.
Conclusion
There is something of a conceit in many TV crime shows that lawyers in private law firms must come in and save the day from overworked and less competent legal services lawyers. This has been an ongoing theme in The Good Wife, a show with excellent writers, who are either lawyers themselves or whose work must be checked by lawyers. Nevertheless, sometimes the client should stick with the court-appointed lawyer, as may have been true here.
I should point out that though this case was a poor example of accelerant detection canine procedure, there are many cases where the alerts of such dogs have been carefully considered and admitted. This is not the place to review a broad range of accelerant detection cases, but that is something I will do in the book I am working on with the help of Tadeusz Jezierski, L.E. Papet, John Grubbs, Greg Keller, and others regarding canine forensics and law.
U.S. v. Hebshie, 2010 WL 4722040 (D.Mass. 2010).
Thursday, December 16, 2010
Bomb Dogs More Effective Than Manual Screening at Ferries, but Cost Three Times as Much
U.S. ferries annually carry over 80 million passengers and 25 million vehicles. They are potential targets for terrorism, and ferry systems have been hit by terrorists overseas. The Transportation Security Administration supplies Visible Intermodal Prevention and Response teams to ferry systems. Some of these VIPR teams include explosives detection canine teams (a handler and a dog). TSA has deployed 319 VIPR units to ferry systems in almost four years, but it is not clear how many of these units included canine teams. Statistics have not been provided as to how many canine teams work in the ferry system on any given day, but it seems likely that only a small portion of people, luggage, and vehicles going onto ferries are actually sniffed by dogs. The map shows areas with significant ferry services in the U.S. (Dark circles show human passengers; light circles show vehicles. Washington State has a high level of cars on its ferries.) In a report published this month, the Government Accountability Office evaluated security at ferry systems using canine and manual screening. Some ferry systems use walk-through metal detectors and baggage belts. The GAO noted that the Coast Guard believes that canine screening is “a reliable and proven method for detecting concealed explosives.” The Coast Guard has stated that “canines provide advantages of superior mobility and the ability to follow a scent directly to its source—citing that canines have a higher probability of detection compared to manual, x-ray, and trace detection methods.”
The description of following a scent to its source may be (or may not be) a reference to Auburn’s now-trademarked Vapor Wake Detection Program, which the GAO has described recently. See Technology Assessment: Explosives Detection Technologies to Protect Passenger Rail, GAO-10-898, p. 42 (July 28, 2010). On November 16, 2010, Auburn was granted trademark rights to the phrase, Vapor Wake. (I have some concern that Auburn’s trademarking of this phrase may induce other training organizations to seek protection for phrases used in marketing and online materials. Some of those phrases may be used by other organizations, meaning that everyone will have to check whether their use of a phrase has become problematic because of someone else trademarking it.)
A dog’s alert allows a ferry to take further action. According to the GAO:
"[S]tate police officers who perform canine screening at one ferry system we visited reported that state case law generally prohibits them from opening a vehicle trunk without the driver’s consent or a search warrant. However, when a canine detects a potential threat associated with a vehicle and the driver does not consent to trunk screening, officers notify the ferry captain. Under the ferry system’s security procedures, anyone denying such a screening will be prohibited from boarding, preventing a potential risk from boarding the ferry."
The Coast Guard has estimated, however, that canine screening is over three times more expensive than manual screening, with a startup program for two handlers and two dogs costing about $250,000. This apparently means that the training phase of the handler, and the expenses related to a dog before deployment, amount to about $125,000. One port security official estimated that the cost of one system’s four canine units per year was $160,000, meaning that a single team costs about $40,000 a year (at least at one location, probably in the South where handler salaries are lower).
The GAO should have investigated how a calculation was reached that canine screening is so much more expensive than manual screening. This seems to be something of a comparison of apples and oranges. For instance, if a ferry takes automobiles, it would be far more time-consuming, likely less thorough, and certainly more Constitutionally suspect, to manually search every car than to walk an explosives detection dog through the vehicle hold. The generally less intrusive nature of drug and explosives sniffs—sui generis as Justice Sandra Day O’Connor described it 27 years ago in U.S. v. Place, 462 U.S. 696 (1983)—continues to explain why canine teams have procedural and often economic advantages over other criminal investigation techniques. (O’Connor’s Latin phrase, sui generis, has never stopped reverberating through the case law of canine sniffs; see the opinion of Justice John Paul Stevens in Illinois v. Caballes, 543 U.S. 405 (2005), concerning automobile sniffs during a legitimate traffic stop.)
Cost issues would, of course, become somewhat secondary if a U.S. ferry were to become a terrorist target.
No uniform standards exist for non-federal canine teams used for screening at ports, though federal project bids will usually include requirements and the captain of a port may have to approve a contractor. Coast Guard officials informed GAO that DHS is currently evaluating the feasibility of developing standards for nonfederal canine programs. (Participants in TSA’s Transit Security Grant Program and DHS’s Homeland Security Grant Program must satisfy SWGDOG guidelines.)
Government Accountability Office, Maritime Security: Ferry Security Measures Have Been Implemented, but Evaluating Existing Studies Could Further Enhance Security, GAO-11-207 (December 2010)
Additional Notes. On December 22, according to the Atlanta Journal-Constitution, federal agents conducting a sweep around Hartsfield-Jackson Atlanta International Airport found men hiding in a truck at the Delta Airlines cargo facility. It was the second night of a Visible Intermodal Prevention and Response operation focused on trucks carrying cargo to be loaded on planes. No specific threat prompted the operation. Bomb dogs, a radioactive detector, and an x-ray device were brought but no explosives were found. This indicates that VIPR teams often involve deploying multiple modalities. DHS also summarized the incident in its daily report. The TSA Blog for August 22, 2013, indicates VIPR teams are not being cut back, at least in rail environments.
Saturday, December 11, 2010
School District Resists Autism Service Dog, but Benefits Outweigh Control Problems
K.D., an autistic child, attended an Illinois elementary school. In May 2009, the boy received a Labrador retriever, Chewey, from Autism Service Dogs of America (ASDA). The court kept the child’s identity and the family’s name confidential, but news reports have identified them. The Villa Grove School District soon sent K.D.’s parents a letter saying that Chewey could not accompany K.D. to school. In July 2009, K.D.’s parents filed suit, seeking a court order permitting K.D. to bring Chewey to the school. The school district filed a motion to dismiss the case because (1) the parents had not exhausted administrative remedies before beginning their suit, and (2) Chewey was not a service animal under the Illinois School Code, which specifies:
"Service animals such as guide dogs, signal dogs or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom." 105 ILCS 5/14-6.02
The trial court denied the school district’s motion to dismiss, and Chewey went with K.D. to school during the 2009-2010 school year.
The parents then sought a court order to require the school district to:
1. Train at least one primary staff member and one backup staff member in the commands needed for Chewey to accompany K.D. to all school functions.
2. Designate one primary staff member to hold Chewey’s leash while K.D. is also tethered to Chewey during transition periods throughout the school day.
3. Designate one primary staff member to release K.D. from his tether while he uses the restroom facilities and during periods with heavy physical activity, such as gym classes.
4. Allow Chewey access to water and to relieve himself during the school day.
The trial court denied this relief, finding the request exceeded the scope of the School Code.
At a hearing, Kati Witko, an ASDA program training director, who trained dogs to assist autistic children, described Chewey’s training. Dogs receive approximately 16 months of training, beginning when they are six to eight months old. Dogs in training are taken to schools to learn to remain calm around children with loud behavior. Dogs are taught to remain at a down-stay position with a child, and not to move from that position unless commanded by a handler.
"Witko stated Chewey is not currently commanded by K.D. because K.D. does not function at a level where he could provide Chewey with a sense of leadership or control. Rather, he is specifically trained not to respond to K.D.'s commands, and thus someone else must command him. Although Chewey knows over 30 commands, a handler needs to know only 5 to manage Chewey in a school environment. Chewey's main handler is K.D.'s mother, Nichelle."
After Chewey had been trained in Oregon, he was assigned to the family in Illinois. Witko went to Illinois to teach Chewey how to apply his training to K.D. This should have involved working in the school as well as the home, but since the school district was not at the time allowing Chewey into the school, Witko had to return in August 2009. At that time she spoke with K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and some “fill-in” aides. Witko left her contact information with school officials but no one from the school contacted her and her follow-up calls were never returned.
Chewey was taught to “stand his ground” when tethered to K.D. to prevent him from running into traffic or other dangerous situations. Tethering is intended to give the child some sense of independence and to reassure family members and school staff that the child will not be able to run. Chewey was also taught a command to apply deep pressure with his head or a paw to K.D., which Witko described as something children with autism “seek and need.”
Nichelle D. the boy’s mother, testified that K.D.’s autism frequently caused him to run away and into dangerous situations, even leaving the house at night while the rest of the family was asleep. K.D. only slept two to three hours a night. After obtaining Chewey, K.D. became upset for shorter periods of time, completed his homework, and began to sleep six to eight hours a night. Chewey barks if K.D. leaves his bed. He began to go to school calmly and happily, without tantrums.
K.D.’s one-on-one aide, Aimee Reardon, helped K.D. “transition” from place to place and do his homework. She testified that the dog did nothing without a command, but said that commands often had to be repeated two to three times. She said Chewey would bark at other dogs near the playground and try to go to dogs. Sometimes he barks in school and sniffs other students. Removing his gentle leader was sometimes difficult. Sometimes K.D. would try to give Chewey commands that differed from those Reardon was giving the dog, which seemed to confuse Chewey.
Kathy Burgess, a full-time aide for the school district, tethered and untethered K.D. and Chewey in the classroom and lunchroom, and also testified to Chewey’s barking at other dogs and sometimes having to be restrained from trying to get to them. She also said that commands had to be repeated. She said she had not notified Witko about Chewey’s barking because it was not a consistent problem.
Beth Wiessing, a speech-language pathologist, met with K.D. four days a week during the 2009-2010 school year. She expressed concern that Chewey “increasingly” stood up when K.D. stood up, despite not being commanded to do so. The dog once ignored a command to stop following K.D. down a hallway when K.D. was untethered. She also complained of having to repeat commands to the dog. She described K.D. as throwing more tantrums after being paired with the dog, as increasingly repeating vocalizations of other persons (a condition called echolalia), and said that the child’s use of spontaneous language had decreased.
The trial court ruled that Chewey was a service animal because he had been individually trained, the child had a disability, and the dog had been trained to perform tasks for the benefit of the child. The court said that to be a service animal the law did not mean that the dog had to perform tasks flawlessly.
The school district appealed, continuing to insist that Chewey was not a service animal, an argument that was a loser on the facts. The appellate court affirmed the trial court in concluding that Chewey was a service animal, as well as denying the argument regarding exhaustion of administrative remedies. This court agreed with the trial court that even if Chewey’s behavior sometimes varied from his training, the Illinois School Code “does not specify service animals must behave perfectly at all times.” Nor does the statute require that a child’s educational and behavioral performance be evaluated before an animal qualifies as a service animal. In testifying, some of the staff seemed to make too much of minor problems and I had to wonder if they were all on board with the school district’s position and the litigation strategy that came from it.
The school district argued that the dog did not “accompany” K.D., as allowed by the School Code quoted above, because K.D. was not Chewey’s handler. The court found this argument sophistic. Given that the trial court had rejected the parent’s motion to require that numerous staff be trained to handle Chewey while K.D. was at school, neither the trial nor the appellate court required the school to provide a handler. This is somewhat analogous to the situation where a facility is required to admit a service animal, but not to care for it when the handler is unable to take care of the dog. For instance, a hospital may be required to admit a service dog accompanying someone who is getting an MRI, but not required to take care of the dog during the MRI. The patient has to bring an alternative handler. The teachers and aides at a special school must adapt to each child, however, making the situation different from a hospital providing an MRI where no staff member would be responsible for a patient in the same way. If a child uses a prosthetic device, for instance, a school would have to train staff to help the child with the device and the same could be said to be true of a service dog. (See 105 ILCS 4/14-1.08, referring to Special equipment for use in the classroom, required by the child because of his disability….”; see also 105 ILCS 4/14-8.02, referring to “supports” for children with autism spectrum disorders.) Since an aide and other staff performed handler functions during the 2009-2010 school year, it must be hoped that the school district will not now argue that an aide would have to be hired by the parents to assume this role.
The school arguably could have based an argument on the dog’s effect on other children in the school, though I think that this would fail because the school would have to reasonably accommodate conflicting interests. The Illinois Code provides that the service animal “be permitted to accompany that student at all school functions, whether in or outside the classroom.” So even if other children are allergic to dogs, satisfying the statute would require that children be separated into different classes to avoid the problem. At least one family has expressed concern about the safety of their child at the Villa Grove Elementary School. Service dogs are trained not to be aggressive and such concerns would probably have been resolved had the school worked with the ASDA trainer. If counseling did not resolve a child’s fears, again the statute would require the school to find an accommodation for both children.
Schools, service dog organizations, and the parents of the child receiving the service dog should reach a formal agreement as to their responsibilities for a service dog before a dog is placed in a school setting. Patty Dobbs Gross, Executive Director of North Star Foundation in Storrs, Connecticut, says that getting a school to buy into the advantages of a dog working with a child at school is extremely important to help everyone concerned in traveling up the necessary learning curves. Such important topics as bullying from normally developing students can be addressed through the introduction of a service dog if the dog is used as an educational tool. According to Patty, who runs tolerance programs with her service dogs in training at schools, there is no better way to teach tolerance than through the eyes of a puppy being trained to help a child with a disability.
From a staff training perspective, it was unfortunate that the elementary school involved in this case did not work with the trainer from ASDA. The dog could, for instance, have been taught to play in the schoolyard with the children, returning balls with his nose. This would likely focus the attention of the dog on the child (or children) rather than on other dogs within sight of the schoolyard, as well as help to integrate the child with autism socially with his peers. Such training glitches as Chewey sniffing children and being slow to respond to commands from adults would also have been addressed in a timely manner. As Rick Manley of the Phoenix Field and Obedience Club taught me long ago, repeating commands is a way of training the dog to respond to a command only after it has been repeated several times.
The accommodation requirements of some of the newer service dog types may present more difficult questions than merely whether a dog is a service animal. Autism service dogs are required to deal with complex situations, and a child that is abusive to a dog may not be a good candidate for a service animal, but this is one case where the advantages of the dog to the child were very clear. The resistance that formed somewhere in the administrative hierarchy of the school district was most unfortunate.
K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill.App. 4 Dist. August 24, 2010). For a discussion of autism service dogs and some of the relevant research, see Service and Therapy Dogs in American Society (pp. 79-83).
Email Comment. I received an email from someone who has been following the case who points out that the dog is apparently conflicted when K.D. gives Chewey commands. She points out that this indicates that the dog is willing to respond to the boy's commands and that some bond has formed. When autism service dogs do not bond with a child, the dog tends to ignore the child's efforts to control it, and may even shy away from the child.
"Service animals such as guide dogs, signal dogs or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom." 105 ILCS 5/14-6.02
The trial court denied the school district’s motion to dismiss, and Chewey went with K.D. to school during the 2009-2010 school year.
The parents then sought a court order to require the school district to:
1. Train at least one primary staff member and one backup staff member in the commands needed for Chewey to accompany K.D. to all school functions.
2. Designate one primary staff member to hold Chewey’s leash while K.D. is also tethered to Chewey during transition periods throughout the school day.
3. Designate one primary staff member to release K.D. from his tether while he uses the restroom facilities and during periods with heavy physical activity, such as gym classes.
4. Allow Chewey access to water and to relieve himself during the school day.
The trial court denied this relief, finding the request exceeded the scope of the School Code.
At a hearing, Kati Witko, an ASDA program training director, who trained dogs to assist autistic children, described Chewey’s training. Dogs receive approximately 16 months of training, beginning when they are six to eight months old. Dogs in training are taken to schools to learn to remain calm around children with loud behavior. Dogs are taught to remain at a down-stay position with a child, and not to move from that position unless commanded by a handler.
"Witko stated Chewey is not currently commanded by K.D. because K.D. does not function at a level where he could provide Chewey with a sense of leadership or control. Rather, he is specifically trained not to respond to K.D.'s commands, and thus someone else must command him. Although Chewey knows over 30 commands, a handler needs to know only 5 to manage Chewey in a school environment. Chewey's main handler is K.D.'s mother, Nichelle."
After Chewey had been trained in Oregon, he was assigned to the family in Illinois. Witko went to Illinois to teach Chewey how to apply his training to K.D. This should have involved working in the school as well as the home, but since the school district was not at the time allowing Chewey into the school, Witko had to return in August 2009. At that time she spoke with K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and some “fill-in” aides. Witko left her contact information with school officials but no one from the school contacted her and her follow-up calls were never returned.
Chewey was taught to “stand his ground” when tethered to K.D. to prevent him from running into traffic or other dangerous situations. Tethering is intended to give the child some sense of independence and to reassure family members and school staff that the child will not be able to run. Chewey was also taught a command to apply deep pressure with his head or a paw to K.D., which Witko described as something children with autism “seek and need.”
Nichelle D. the boy’s mother, testified that K.D.’s autism frequently caused him to run away and into dangerous situations, even leaving the house at night while the rest of the family was asleep. K.D. only slept two to three hours a night. After obtaining Chewey, K.D. became upset for shorter periods of time, completed his homework, and began to sleep six to eight hours a night. Chewey barks if K.D. leaves his bed. He began to go to school calmly and happily, without tantrums.
K.D.’s one-on-one aide, Aimee Reardon, helped K.D. “transition” from place to place and do his homework. She testified that the dog did nothing without a command, but said that commands often had to be repeated two to three times. She said Chewey would bark at other dogs near the playground and try to go to dogs. Sometimes he barks in school and sniffs other students. Removing his gentle leader was sometimes difficult. Sometimes K.D. would try to give Chewey commands that differed from those Reardon was giving the dog, which seemed to confuse Chewey.
Kathy Burgess, a full-time aide for the school district, tethered and untethered K.D. and Chewey in the classroom and lunchroom, and also testified to Chewey’s barking at other dogs and sometimes having to be restrained from trying to get to them. She also said that commands had to be repeated. She said she had not notified Witko about Chewey’s barking because it was not a consistent problem.
Beth Wiessing, a speech-language pathologist, met with K.D. four days a week during the 2009-2010 school year. She expressed concern that Chewey “increasingly” stood up when K.D. stood up, despite not being commanded to do so. The dog once ignored a command to stop following K.D. down a hallway when K.D. was untethered. She also complained of having to repeat commands to the dog. She described K.D. as throwing more tantrums after being paired with the dog, as increasingly repeating vocalizations of other persons (a condition called echolalia), and said that the child’s use of spontaneous language had decreased.
The trial court ruled that Chewey was a service animal because he had been individually trained, the child had a disability, and the dog had been trained to perform tasks for the benefit of the child. The court said that to be a service animal the law did not mean that the dog had to perform tasks flawlessly.
The school district appealed, continuing to insist that Chewey was not a service animal, an argument that was a loser on the facts. The appellate court affirmed the trial court in concluding that Chewey was a service animal, as well as denying the argument regarding exhaustion of administrative remedies. This court agreed with the trial court that even if Chewey’s behavior sometimes varied from his training, the Illinois School Code “does not specify service animals must behave perfectly at all times.” Nor does the statute require that a child’s educational and behavioral performance be evaluated before an animal qualifies as a service animal. In testifying, some of the staff seemed to make too much of minor problems and I had to wonder if they were all on board with the school district’s position and the litigation strategy that came from it.
The school district argued that the dog did not “accompany” K.D., as allowed by the School Code quoted above, because K.D. was not Chewey’s handler. The court found this argument sophistic. Given that the trial court had rejected the parent’s motion to require that numerous staff be trained to handle Chewey while K.D. was at school, neither the trial nor the appellate court required the school to provide a handler. This is somewhat analogous to the situation where a facility is required to admit a service animal, but not to care for it when the handler is unable to take care of the dog. For instance, a hospital may be required to admit a service dog accompanying someone who is getting an MRI, but not required to take care of the dog during the MRI. The patient has to bring an alternative handler. The teachers and aides at a special school must adapt to each child, however, making the situation different from a hospital providing an MRI where no staff member would be responsible for a patient in the same way. If a child uses a prosthetic device, for instance, a school would have to train staff to help the child with the device and the same could be said to be true of a service dog. (See 105 ILCS 4/14-1.08, referring to Special equipment for use in the classroom, required by the child because of his disability….”; see also 105 ILCS 4/14-8.02, referring to “supports” for children with autism spectrum disorders.) Since an aide and other staff performed handler functions during the 2009-2010 school year, it must be hoped that the school district will not now argue that an aide would have to be hired by the parents to assume this role.
The school arguably could have based an argument on the dog’s effect on other children in the school, though I think that this would fail because the school would have to reasonably accommodate conflicting interests. The Illinois Code provides that the service animal “be permitted to accompany that student at all school functions, whether in or outside the classroom.” So even if other children are allergic to dogs, satisfying the statute would require that children be separated into different classes to avoid the problem. At least one family has expressed concern about the safety of their child at the Villa Grove Elementary School. Service dogs are trained not to be aggressive and such concerns would probably have been resolved had the school worked with the ASDA trainer. If counseling did not resolve a child’s fears, again the statute would require the school to find an accommodation for both children.
Schools, service dog organizations, and the parents of the child receiving the service dog should reach a formal agreement as to their responsibilities for a service dog before a dog is placed in a school setting. Patty Dobbs Gross, Executive Director of North Star Foundation in Storrs, Connecticut, says that getting a school to buy into the advantages of a dog working with a child at school is extremely important to help everyone concerned in traveling up the necessary learning curves. Such important topics as bullying from normally developing students can be addressed through the introduction of a service dog if the dog is used as an educational tool. According to Patty, who runs tolerance programs with her service dogs in training at schools, there is no better way to teach tolerance than through the eyes of a puppy being trained to help a child with a disability.
From a staff training perspective, it was unfortunate that the elementary school involved in this case did not work with the trainer from ASDA. The dog could, for instance, have been taught to play in the schoolyard with the children, returning balls with his nose. This would likely focus the attention of the dog on the child (or children) rather than on other dogs within sight of the schoolyard, as well as help to integrate the child with autism socially with his peers. Such training glitches as Chewey sniffing children and being slow to respond to commands from adults would also have been addressed in a timely manner. As Rick Manley of the Phoenix Field and Obedience Club taught me long ago, repeating commands is a way of training the dog to respond to a command only after it has been repeated several times.
The accommodation requirements of some of the newer service dog types may present more difficult questions than merely whether a dog is a service animal. Autism service dogs are required to deal with complex situations, and a child that is abusive to a dog may not be a good candidate for a service animal, but this is one case where the advantages of the dog to the child were very clear. The resistance that formed somewhere in the administrative hierarchy of the school district was most unfortunate.
K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill.App. 4 Dist. August 24, 2010). For a discussion of autism service dogs and some of the relevant research, see Service and Therapy Dogs in American Society (pp. 79-83).
Email Comment. I received an email from someone who has been following the case who points out that the dog is apparently conflicted when K.D. gives Chewey commands. She points out that this indicates that the dog is willing to respond to the boy's commands and that some bond has formed. When autism service dogs do not bond with a child, the dog tends to ignore the child's efforts to control it, and may even shy away from the child.
Thursday, December 2, 2010
Huang Hua, Joan Hinton, and China, 1984
Two people that I met in China died recently. Last week it was Huang Hua, once Vice Prime Minister of China, who entertained my father and the members of his family traveling with him in a dining hall in the Forbidden City in Beijing. More on that later. The other was Joan Hinton, whom I met on a collective farm in rural China. My father led a group of American agriculturalists around China for 30 days in 1984. Instead of just visiting the cities, we spent much of our time in the country so that the agricultural scientists could talk with the people running the large farming operations. Joan Hinton and her husband were on a farm that had a large dairy operation that Hinton’s husband, Erwin Engst, had helped build. The couple had raised their children in China and Mrs. Hinton told me that her son, who had returned to the United States for college, had an accent that for some reason was mistaken as German, not Chinese. The Hintons wore Mao jackets, which was curious since this was twelve years after Nixon’s visit and eight years after Mao’s death. Most government officials by then were wearing well-tailored Italian suits. My father said that Engst and others had built a very good dairy operation from scratch, and he was impressed. He did not know anything about Hinton and it was only after her obituary appeared in the New York Times in June of this year that I learned of her connection to the Manhattan project and the suspicion that she may have been a spy. The couple struck me as good natured old lefties of the sort that one could still find in the coffee shops along Telegraph Avenue in Berkeley in the 60s talking about visiting Trotsky in Mexico before his assassination by Stalin's agents.
Huang Hua was a very different story and to tell what I know about him requires that I explain why my father was in China in the first place, By the time I went with him in 1984 my father and mother had been to China five times. They had first gone in 1972. When Nixon returned from China my father got a call from Earl Butz, then Secretary of Agriculture, whom my father had known for more than a decade. As my father told it, Butz’s first words were, “You’re going to China.” My father had no connection with China and asked why. “They asked for you,” was Butz’s reply. “But why me?” my father asked. “I don’t know.” In time my father did find out. In the 1950s, he had written up some research he found in a journal published in Hong Kong. The paper had been roughly translated into English and my father saw the results as significant. He wrote about this in several places, but never knew that it had come out of Red China. He told me he had assumed it had been done in Taiwan or Hong Kong. My father’s attention gave the paper international recognition at a time when Chinese research was often ignored by western scientific publications. The Chinese never forgot and when Butz asked if they had a preference about who could lead the first exchange of livestock producers, they asked for my father.
So in late 1972 my father went to China. He met several officials and spoke at the University of Beijing, but he spent most of his time talking to the leaders of collective farms. Because he went to parts of China where no American had been for a generation, his return flight was routed through Washington where he was debriefed by someone from the Pentagon. According to my father, he made a lousy spy because, in his words, "I couldn't tell a missile silo from a grain silo." (Actually I'm quite sure he could, but it was probably his way of saying that the debriefing made him uncomfortable. He thought that agriculture should be outside of politics, if not above it.)
My father kept going back. Several times he asked me to come with him, but the time required either conflicted with school (I was in law school until 1974) or work. Finally I went in 1984. The dinner in the dining hall in the Forbidden City with Huang Hua and his wife was perhaps the most unique event I have ever attended. My father had been dealing with the Vice Prime Minister for years and the two had become friends, but the rest of us were in awe of the man who had met with Henry Kissinger to bring down the barriers that had separated China from the United States since 1949. After the dinner was over and we were being taken back to our hotel, my wife turned to me and said, “Two little nebbishes from New York have just had dinner with one of the most powerful men in the world in one of the most unusual places in the world.” Indeed. At about 3 a.m. the entire group of about 20 were wakened and driven to see Mao, whose body, preserved in an inert atmosphere, had not been visible to the public for some months while his mausoleum was being repaired. There were large plastic sheets hanging around the walls of the room to prevent the public from looking in. The time was selected so that no one would know that an American group had been allowed to see Mao when others were being denied the privilege. It was a favor to my father from Huang Hua.
I wish that I could say that I had seen paintings of Pekingese dogs on the walls of the imperial palace, but I didn’t. The only dogs I remember from that trip were the several varieties of dogs that the shepherds in Inner Mongolia kept for their herds. They are hardy animals. With the cold winds and long winters of Mongolia, they have to be. My mother took some pictures of these dogs for possible inclusion in a revision of The Complete Book of Dogs, which my father never got around to. My efforts to find the pictures my mother took of the Mongolian dogs have so far been unsuccessful. The picture here is from stock photography.
Sunday, November 28, 2010
Are Terrorist Threats Changing Constitutional Parameters of Police Behavior? Considering an Incident at the Minneapolis/St. Paul Airport
An opinion of a federal magistrate shows that narcotics detection dogs at airport screening must be deployed before a seizure of a passenger’s carry-on luggage has become unlawful under the Fourth Amendment. The facts of the case also show something about how TSA and airport police hand off cases to each other during screening procedures. Conducting a dog sniff during an initial search of the luggage at an inspection table would have been legal under the magistrate's analysis, but detaining the luggage and the passenger in a separate screening room without probable cause or reasonable suspicion meant that the subsequent sniff by the drug dog was fruit of the poisonous tree and had to be thrown out. Would the result have been the same had a bomb dog been used instead of a drug dog? A Passenger with $90,000 in Cash. Johnny Chan was selected by an airline for heightened TSA screening on his boarding pass. Cosgrove was working at Security Checkpoint 5 at the Minneapolis/St. Paul International Airport on July 20, 2007. (The diagram from the airport's website shows the configuration of security checkpoints.) Chan’s belongings went through the X-ray machine and Chan walked through the metal detector. The X-ray operator told Cosgrove that there were three large opaque items in Chan’s bag. Chan was led to a screening table where he was frisked by Cosgrove in what the TSA calls a bulk item pat-down. Cosgrove searched Chan’s bag and discovered a black plastic garbage bag with three bundles of cash. Cosgrove asked Chan what the money was for and Chan said it was to buy copy equipment in Chicago. Cosgove called over his supervisor, Finch, because significant amounts of cash were considered unusual circumstances. So far, it appears there was nothing illegal about the procedures.
Finch told Cosgrove to return to his regular duties. Finch asked Chan what he was doing in Minneapolis. Chan said he had been looking at colleges with his daughter but according Finch was unable to name a single college they had visited. Another witness said that Chan had mentioned Concordia College and the court concluded that Chan’s answers had been adequate. Chan appeared nervous and was sweating during the questioning but the court apparently determined that this was not unusual under the circumstances.
Finch told Kohanek, the TSA supervisor on duty, about Chan, indicating he was not satisfied with Chan’s responses. Kohanek walked to Chan with two airport policemen. It was unclear who had called the airport police. Even thought the screening process was completed, Chan was escorted by the two officers into a private screening room, about 20 feet from the screening table. Chan was not told that he was free to leave. It was unclear if Chan’s boarding pass and ID had been returned to him. The magistrate found that the detention became illegal at this point. The purpose of the stop had been completed and the airport police “had neither probable cause nor even a reasonable articulable suspicion that the luggage contained contraband or evidence of a crime.” Chan had not been told he was free to leave and no reasonable person in his situation would have thought so. Arguably, however, Chan’s nervousness in the face of questioning and his inadequate answers, had the court accepted Finch’s version of events, could have justified further inquiry. Nervousness has been found by some courts to provide reasonable suspicion for additional detention during traffic stops and in other situations, allowing for a canine sniff.
Husby of the Airport Police Department spoke to Chan in the private security room until a K9 officer arrived with a dog. Chan was not asked if he would consent to having his luggage subjected to a dog sniff. Husby testified that it was normal procedure to have a narcotics dog smell large amounts of currency. The dog alerted to the cash and Chan was removed from the security checkpoint to the police operations center. (The dog’s alert was most likely to methyl benzoate, a substance in street cocaine. The canine evidence was not challenged by Chan and the reliability of the dog was not discussed in the opinion. Nor was it determined how long Chan had held the cash, which would be important in calculating whether the methyl benzoate got onto the cash while it was in Chan’s possession.) Chan was then told he was free to go but that his cash was being seized. By this time Chan had missed his flight to Chicago. Also about this time, Husby and other officers learned that Chan had an outstanding arrest warrant but the officers decided not to execute the warrant. The warrant was a felony arrest warrant for financial fraud.
The government contended that Chan voluntarily consented to the investigation into the facts surrounding the cash, but the court held that “any reasonable traveler in Mr. Chan’s circumstances would have perceived that he was not free to leave from the moment he and his luggage were seized by TSA Officer Cosgrove, until he was released after the APD refused to return his money to him after the dog sniff.” The magistrate concluded that the $90,000 seized from Chan was the fruit of an unlawful seizure of his luggage and an unlawful detention and the money had to be suppressed. Specifically, the luggage was unlawfully seized when the airport police took possession of it with neither probable cause nor reasonable suspicion. The magistrate stated:
"At the moment of seizure, the police knew only that Mr. Chan had $90,000 in U.S. Currency, that he made no effort to conceal, and that he was transporting to Chicago. Mr. Chan knew the amount of money and answered the officer's questions about what he intended to do with it. Until the dog alerted to the money, the police had found no drug related evidence on Chan's person, or in his luggage. While the police later learned that Mr. Chan had a criminal history, they did not know that until after the dog sniff…. Neither the TSA, nor the police officers were able to articulate a basis for believing the money carried by Mr. Chan was drug related. Their respective descriptions of why they continued to investigate the money rise no higher than the level of a 'hunch', which is insufficient to warrant an investigatory seizure of Mr. Chan's luggage."
The magistrate said that even assuming there was reasonable suspicion allowing continued detention, the length of the detention here exceeded Constitutional bounds of a permissible search and seizure. Had the police executed the outstanding warrant as soon as they knew of it, this might have provided a lawful basis to seize the cash incident to the arrest. U.S. v. $90,000 in United States Currency, 2009 WL 6327469 (D.Minn. 2009).
A Slightly Different Scenario. Let me change a few facts and discuss whether the result should be the same. Instead of financial fraud, suppose that the officials discover that the warrant was issued by a foreign country and may have involved providing financial support for terrorists. Also suppose that instead of a drug dog, the dog was a bomb dog and alerted to the cash. Some explosives contain highly volatile chemicals that could adhere to currency. (Admittedly, terrorists could more easily separate those handling explosives from those handling cash than is generally the case with cocaine on currency, where the currency is often received from cocaine users. I could get around such an objection by just stating that the dog alerted to a suitcase, rather than cash in it.)
It is obvious that the full body scans that are now so riling the air travel public would not be tolerated were their objective to find drugs. The threats of explosives on passengers or in luggage or cargo are so horrifying as to change the boundaries of police behavior, and I suspect, judicial perspectives. Chief Justice Warren, more than forty years ago in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), put the “threat of physical harm” to the officer involved and potentially others in the balance for determining whether the officer’s actions in a stop were reasonable. If the federal district court had found that the passenger’s nervousness justified detention for the sniff, then the seizure might have been approved. Would the court have favored the version of events argued by the government if the situation had involved possible terrorism? This would not result in a change of the letter of the law, but rather in a court’s tendencies in dealing with the facts of a case. Yet change it would be.
At Berkeley I took a seminar from the great scholar of ancient law, Professor David Daube. In one class Daube asked us why so many of the great works of Roman law dated not from the height of the Roman Empire, but rather from well into its decline. Was there something about legal reasoning that allowed it to flourish as a civilization neared its end? I don’t remember that Professor Daube really answered his question. It was more to make us think but this was decades before terrorism became part of daily life and fear. Now it strikes me that as a society becomes more paranoid when the enemy gets closer, the interpretation of rights is going to change in a reflexive effort to deal with the threat, particularly if the threat is invisible. It may be cloaked as a return to an ancient austerity, from a time when a different enemy was at the gates. Although I cannot say exactly how it will happen, it is obvious to me that cases involving terrorism are becoming a mechanism for restricting freedoms we Americans hold so dear.
For security reasons, some cases are deflected from public exposure in various ways. A case like my hypothetical, for instance, might have been dealt with by putting a homing device in the cash to follow the passenger’s subsequent movements, rather than an arrest. There would have been no case. Unfortunately, we live in interesting times.
Monday, November 22, 2010
Navy Oversight of Canine Operations Needs To Improve: Hazings in Bahrain
The Log Cabin Republicans sued the United States and the Secretary of Defense, Robert Gates, alleging that the “don’t ask, don’t tell” policy violated the rights of its members under the First and Fifth Amendments. Federal Judge Virginia A. Phillips of the Central District of California held that 10 U.S.C. 654, stating Congressional policy concerning homosexuality in the armed forces, was unconstitutional.
One of the stories brought before the court was that of Joseph Rocha, who enlisted in the Navy in 2004 when he was 18. His family had a multi-generational history of military service and Rocha wanted to become an officer in the Marine Corps despite not having been admitted to the Naval Academy. He set his sights on entering the Officer Training School as an enlisted man. After basic training, Rocha was promoted to seaman apprentice and volunteered for a military mission to Bahrain. There he sought out the base’s canine handler position because he wanted to become an explosive-device handler. He tested for a kennel-support assignment, but his contact with other handlers was limited to a few on the night shift.
In time, Rocha passed oral and written examinations to qualify for an assignment in kennel support, where he cleaned, fed, medicated, and exercised explosives detection dogs. Meanwhile, Rocha also earned martial arts, combat, and swimming qualifications. Judge Phillips describes what happened next:
When the eighteen-year-old Rocha declined to participate in the unit's practice of visiting prostitutes, he was taunted, asked if he was a “faggot,” and told to prove his heterosexuality by consorting with prostitutes…. [The canine unit commander, Chief Petty Officer] Toussaint freely referred to him as “gay” to the others in the unit, and others in the unit referred to him in a similar fashion…. When Rocha refused to answer the questions from [the Petty Officer] and others in the unit about his sexuality, “it became a frenzy,” in his words, and his superiors in the canine unit would gather around him, simulate sexual positions, and ask if the U.S. Marine Corps soldiers performed various sexual acts on him…. [The commander] ordered all of the other men in the unit to beat Rocha on the latter's nineteenth birthday.
On one occasion that Rocha testified was especially dehumanizing, [the commander] brought a dozen dogs to the Department of Defense Dependent School for a bomb threat training exercise. For the “training exercise” he instructed Rocha to simulate performing oral sex on another enlisted man … while [the commander] called out commands about how Rocha should make the scenario appear more “queer.” …On another occasion, [the commander] had Rocha leashed like a dog, paraded around the grounds in front of other soldiers, tied to a chair, force-fed dog food, and left in a dog kennel covered with feces.
Rocha did not discuss his sexual orientation with his commanding officer, who was obviously not tolerant, but in any case he wanted to comply with the don’t ask, don’t tell policy. Eventually, Rocha returned to the United States and was assigned to the Lackland Air Force Base for Military Working Dog Training School. After completing this training, he returned to Bahrain and encountered the same atmosphere. The new commander was as prejudiced as the last, telling Rocha that he was everything the commander hated, “liberal, Catholic, and gay.” The new commander continued haunting and harassing Rocha and put an image of two men engaging in homosexual activity on Rocha’s computer. Despite the egregious mistreatment, Rocha at first declined to complain about a superior even when he was being investigated on another matter.
Rocha received numerous commendations and was awarded the Navy and Marine Corps Achievement Medal and in 2006 received the sole nomination from his Congressman for entrance into the U.S. Naval Academy. At that time, reflecting on the long-term commitment a Navy career would entail, Rocha informed the Navy of his sexual orientation. Several Officers tried to dissuade him from coming out, telling him he was being considered for various honors and leadership positions, including a battalion leadership. Rocha persisted and received an honorable discharge.
While it has not been my intention to enter into non-canine policy debates, I do think losing this man was a serious loss for the Navy. What concerns me here is that this case refers to practices that suggest that some military working dog commands overseas may not be run very well and that oversight may be deficient or lacking several steps up the chain of command. Why was there a kennel covered with feces? Why was a person dogs were expected to obey put into positions that the dogs might see as justifying a lack of obedience on their part? Why did a training exercise involve simulated sexual positions? What were the dogs being taught to do? Sniff terrorists at gay bars in Bahrain?
Maturity is crucial in working with dogs, particularly with explosives detection dogs expected to have a high level of reliability. Putting the command of a military dog unit in a dangerous location in the hands of individuals with the maturity of a bunch of drunken frat boys should be of grave concern to the military and taxpayers alike. The Navy has said the incident is under review. Rocha has written about his experience. Toussaint was forced to retire.
Log Cabin Republicans v. U.S., 716 F.Supp.2d 884 (C.D.Cal. 2010).
Wednesday, November 17, 2010
Using a Bite-and-Hold Trained Dog for Search and Rescue Leads to Lawsuit
The police receive a call that a boy is lost, drunk, and wearing very little on a cold night. An officer arrives with a dog trained in tracking and suspect apprehension. The dog apprehends with a bite and hold. The department has a tracking dog that is used in search and rescue, but it is not available because of a recent injury. Should the police use the bite-and-hold dog? The issue recently faced a canine officer in Maryland. I'll refrain from editorializing while the matter remains in active litigation.
Judge J. Harvie Wilkinson of the Fourth Circuit Court of Appeals tells the story better than I could:
Around 7:00 p.m. on the night of March 17, 2006, Oscar Melgar, then thirteen years old, learned about a birthday party from his friend, Brian Bentacur. Oscar received permission from his mother to go to the party with Brian, and Brian's mother agreed to take the boys. The party was in Gaithersburg, Maryland, approximately thirty minutes from Oscar's home in Rockville, Maryland.
Brian's mother picked up Oscar around 8:15 p.m., and the boys arrived at the party around 8:45 p.m. Approximately thirty minutes after the boys arrived, an older youth, who was about seventeen years old, started pouring mixed alcoholic beverages of rum and cola. The beverages were served in eight-ounce cups. Oscar knew he was being served alcohol, although he had never had a drink before. Within ten minutes of his first drink, Oscar consumed two additional eight-ounce rum and colas. He began to feel the effects of the alcohol in the middle of his third drink but still finished it.
Brian also was drinking, and one of the girls at the party complained that he was becoming “too touchy.” Oscar was told to take Brian outside to “walk it off.”
The outside temperature was in the upper thirties or lower forties, and even Oscar later admitted that it was cold. Oscar was wearing jeans and had a green warm-up jacket over his shirt. Brian wore jeans but only had on a long sleeved shirt.
The boys started walking, intending to circle the block, but they were not familiar with the neighborhood and got lost. As they walked, Oscar could feel the effects of the alcohol growing stronger, and Oscar testified that Brian also appeared to be growing increasingly intoxicated.
The two boys eventually sat down on a lawn. Oscar had a phone but wanted to sober up before calling Brian's mother to pick them up. After sitting on the lawn for a few minutes, Oscar saw a man walking a dog approaching. Oscar, who admits he was drunk and not thinking straight by this point, got up and walked away. He crossed the street, headed down a sidewalk, and eventually crossed a lawn toward a home, where he passed out under a holly bush. He stated that he went under the bush “so nobody could see me drunk.” His last recollection was “getting cold, and trying to get warm.”
Around 10:40 p.m., Jessica and Michael Sommerville were walking together when they discovered Brian Betancur lying on the ground. Ms. Sommerville testified that she saw another boy stumble away from Brian as they approached. Ms. Sommerville did not recognize Brian, and she began to question him. She testified that Brian did not appear to be aware of the cold weather, even though he was only wearing a tee shirt. In addition, his speech slurred at times during their conversation, although at other times it was clear. Because the situation appeared unusual, Mr. Sommerville called 911 and reported finding a boy lying on the ground.
Both paramedics and the Montgomery County Police Department responded to the call. Officer Todd Uvary, the first officer to respond, saw that Brian Betancur “was extremely intoxicated” and had vomited and urinated on himself. He was told by paramedics that Brian was suffering from hypothermia and a possible alcohol overdoes. Both Sommervilles told the police about the other boy they had seen, and Ms. Sommerville described his clothes. She also told the police that he stumbled away and sounded like he was vomiting, although Oscar later denied being sick. Officer Uvary communicated this information to the next two officers to arrive, Officers Holland and Camp. Concerned about the possibility that another intoxicated, lightly clothed boy could be outside, the three officers circled the neighborhood for approximately twenty minutes, using spotlights mounted on their cars to look in yards. At least one officer also got out of his car with a flashlight and looked in back yards.
As the officers were unsuccessful in the initial search, Officer Camp called a sergeant for advice and was told that it would be acceptable to bring a canine unit to the scene. Officer Camp called one of the appellants, John Greene, who was dispatched at 11:27 p.m. When Greene arrived, the other officers told him that Oscar was last seen approximately an hour earlier and that they had already made an unsuccessful search on foot and by car. Greene also was told that Brian had been taken by ambulance to the hospital for possible alcohol poisoning and hypothermia.
Greene decided to use his patrol dog, Carter, an animal trained to find individuals and to bite them when he came in contact, to make a quick search for the missing boy. While Greene normally would have used a bloodhound to perform such a search, his bloodhound was out of service with a knee injury. Because the police department's other bloodhound was off duty, Greene estimated it would have taken approximately another hour for it to respond. Additionally, because no scent item was available, a bloodhound search would have been difficult even if one had been available.
Greene also evaluated several other factors in reaching his decision. He considered that there was no definitive evidence that anyone was actually missing or endangered. However, if anyone was in fact missing, the cold weather, the presumed intoxication, and the elapsed time were all of serious concern. Greene also realized that no criminal suspect attempting to evade capture was involved, making it likely that he would see anyone before a dog got close enough to bite.
After deciding to use Carter to search, Greene put the dog on a fifteen foot lead. He did not muzzle Carter, and there is a factual dispute as to whether a muzzle would have significantly limited Carter's tracking ability.
Greene took Carter to the last point where Oscar was reported seen and commanded Carter to “track.” Carter cast about looking for a scent and then began to track down the sidewalk. Greene began to call out to Oscar, saying he was there to help and to take him home. Oscar states he never heard anyone, but the district court gave no credence to his assertions because it recognized Oscar was inebriated and not in a condition to hear. After tracking a short distance down the sidewalk, Carter turned sharply across a yard and went into a holly bush where Greene could no longer see him. Greene did not interpret the turn as indicating that anyone was close. The lead went slack, and only then did Greene realize that Carter had found Oscar, who was asleep. By the time Greene realized what was happening, the dog had already bitten Oscar's lower right leg.
Greene testified that he did not verbally call Carter off because Oscar was struggling, and Greene was concerned that if the dog released he might re-bite Oscar's face. Instead, Greene walked up the leash and physically removed the dog. While this was happening, the dog pulled Oscar some five or six feet…. Oscar suffered two lacerations on his lower right leg just above the ankle, one approximately 4.25 inches and the other 1.5 inches long.
The injuries to the boy’s leg resulted in a permanent disruption in sensation around the scars. He will have to wear a protective ankle brace for athletic activities indefinitely.Oscar’s father, as Oscar’s guardian, sued Officer Greene and Montgomery County, both of which moved for summary judgment, which the district court denied. The defendants appealed the denial.
Judge Wilkinson first concluded that a seizure had occurred, noting that a seizure can take place “if police purposely detain a person but somehow use more force than intended.” Citing Supreme Court dicta in Brower v. County of Inyo, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), the Fourth Circuit said that as long as the instrumentality (here, a dog) was intended, a seizure occurred even if the degree of the instrumentality’s effectiveness was unanticipated.
Officer Greene chose to use a dog conditioned to bite its target when found and thus cannot claim that there was no seizure when the dog he set in motion behaved exactly as it was trained to do.
The court noted that the handler believed the boy was not eluding pursuit and would likely be out in the open and visible before a dog could bite him. The Montgomery County Police Department guidelines allowed the use of patrol dogs to search for missing persons.
Nevertheless, the court concluded that there were factual questions that made summary judgment on the excessive force claim inappropriate. Why was the dog not muzzled? Why was a long (15 ft) leash used? Should the officer have recognized from the dog’s behavior that it was close to the boy?
The officer argued that the dog would not smell inside of a muzzle. He argued that the dog could not cast properly without a long lead.
Prior cases have referred to different lengths of leads. In Trammell v. Thomason, 559 F.Supp.2d 1281 (M.D.Fla. 2008), the officer used a six-foot lead to pursue a criminal, while in Peterson v. City of Federal Way, 2007 WL 2110336 (W.D.Wash. 2007), the handler used a 30-foot lead to search for a hit and run suspect with an outstanding arrest warrant.
Finally, there is a dispute over when a reasonable officer should have realized that Carter was close to locating Oscar. Officer Greene testified that he did not realize that Oscar was near when his dog reversed course and cut across the yard right before entering the holly bush where Oscar was lying. Plaintiff's expert, however, stated that the shift in course was significant and that a reasonable officer should have realized what was occurring.
The court felt that cases where a dog was released from a leash in pursuit of a criminal were not analogous in that letting a dog run free, knowing that it would bite its target when found, was a sufficiently different situation as to provide no useful guidance.
The International Association of Chiefs of Police (IACP) has a policy explicitly allowing the use of police canines to track missing persons so long as the dogs “remain on a leash of sufficient length to provide a reasonable measure of safety to the subject of the search without compromising the canine’s tracking abilities.” In a concepts and issues paper from 1992 (revised 2001), Law Enforcement Canines, the IACP adds that “caution must be taken when using law enforcement canines to track children or other civilians who are simply lost.”
The court held that Officer Greene was entitled to qualified immunity. State law claims survived, however. Judge Michael dissented on the determination that qualified immunity applied, noting the dangers of using a dog taught in the bite-and-hold method.
Melgar v. Greene, 593 F.3d 348 (4th Cir. 2010). On remand, the federal district court declined to accept jurisdiction on the state claims and the case has moved to the state court system.
Thursday, November 11, 2010
The Dogs of the Night Watch
In the urban centers of northern Europe in the Renaissance, a lowly and lonely profession was that of the night watchman. Those wandering the dark streets at night could often be presumed to be up to no good and night watchmen were usually armed against the dangers. It is therefore not surprising that night watchmen would acquire dogs to add the animals' senses to their own, as well as to combine the jaws of dogs with the weapons of their arsenels. The title page of a book by Thomas Dekker printed in 1608, reproduced here, shows a night watchman of London carrying a lantern and a pike and followed by a dog. The dog, more alert than the master, has turned backwards towards a sound or a threat, its face showing almost human suspicion if not anger. No leash is depicted but the dog's collar appears unnaturally lifted towards the front. Perhaps the leash was left out because the artist wanted the teamwork of the pair, rather than a leather strip between them, to intertwine their fates. Or perhaps there never was a leash and I'm getting overly creative in my interpretation.
A woodcut from not too much later shows a night watchman of Antwerp subduing a criminal using just such a pike and a dog. The dog is biting the criminal in the leg while the watchman prepares to stab the man in the buttocks. Schoon and Haak, in their book, K9 Scent Identification, reproduce the woodcut and a greeting card from the night watchmen of Leuven in 1786, showing five men following or being followed by their dogs. These authors suggest that the companions of the night watchmen may have been the first police dogs and I have found no evidence to disprove this idea.
The dogs in these seventeenth century depictions are all medium to large, unlike the dogs leading blind men that I have described in prior blogs (October 9, September 14, July 19). Although the relative size of the dogs may have been adjusted for the artists’ purposes, it does seem that guard dogs were generally large, while guide dogs were small because of the poverty of their masters and the difficulty they would have had in feeding and caring for the animals.
Some of the dogs of the night watchmen may have been trained to attack. Ulysses Aldrovandus, in his natural history, De Quadropedibus, printed in 1621, writes that war dogs were trained as follows:
"The [war] dog ought to be trained up to fight from his earliest years. Accordingly some man or other is fitted out with a coat of thick skin, which the dog will not be able to bite through, as a sort of dummy: the dog is then spurred on against this man, upon which the man in the skin runs away and then allows himself to be caught and, falling down on the ground in front of the dog, to be bitten. The day following he ought to be pitted against another man protected in the same manner, and at the finish he can be trained to follow any person upon whose tracks he has been placed.... Blondus is even of the opinion that from time to time it is a good thing to go for this dog with drawn swords."
Aldrovandus reports that war dogs were more common in Spain than elsewhere in his time, and there are records of their murderous use by conquistadors in the New World. Stephanitz cites the 1473 edition of Mynsinger as stating that dogs were taught to "stand up to a man, who was clothed in a stout coat of skins lest the dog should bite him during his education."
Rembrandt’s Night Watch, displayed in the Rijkmuseum in Amsterdam, contains the figure of a dog towards the lower right of the painting. The dog was pointed out to me more than a decade ago by Milton Bellis when we stood beside the painting the night of a reception at the museum for the International Swaps and Derivatives Association. Milton, once a UPI correspondent in post-WWII Europe, knew some of the scholarship on Rembrandt's painting. The painting, earlier known as The Company of Frans Banning Cocq and Willem van Ruytenburch, may have nothing to do with night watchmen. The dog, the only animal in a painting of 34 people, barks at a drummer. It has been suggested by the art historian Georges Boka that the dog in the painting is a symbol of death. At a time when one could not turn on a light bulb in the night perhaps it was easier to imagine a dog barking at a soul searching for the boatman to cross the final river.
The tradition of night watchmen using dogs may have continued until the beginning of formal canine units in police forces. Policemen who used dogs generally bought their own initially, something mentioned in a number of nineteenth century and early twentieth century U.S. legal cases. J.J. Sullivan, official historian of the New York City Retired Transit Police Officers' Association, has found a notation in the records of the NYC police for 1853 that may indicate the police had in that year purchased "1 dog." It is not clear what the police department, almost 50 years before the first police canine units on record, would have wanted with a dog. Dogs were known to be used to guard warehouses and armories in the nineteenth century, and it is possible that some such use was being made of the dog.
Sources: Thomas Dekker, Bringing to Light the Most Notorious Villanies that are Now Practised in the Kingdome. Profitable for Gentlemen, Lawyers, Merchants, Cittizens, Farmers, Masters of Householdes, and All Sorts of Seruants to Mark, and Delightfull for All Men to Reade (limited edition (200) linoleum block print). For a reproduction of a woodcut showing a night watchman with a lantern, a staff, and a dog, see William Chappell, The Roxburghe Ballads, IV, 470 (Ballad Society, Hertford 1883); Adee Schoon and Ruud Haak (2002). K9 Suspect Discrimination: Training and Practicing Scent Identification Line-ups (Detselig Alberta, Canada). Mark Derr (1997 and 2004). Dog’s Best Friend: Annals of the Dog-Human Relationship (University of Chicago Press 2004), 153; Stephanitz, M.v. (1923) The German Shepherd Dog in Word and Picture, 336. Anton Kampfe, Jena, Germany, quoting Mynsinger, Heinrich (1473). Puoch von den valken, habichten, spreben, pfariden, und hunden. Stephanitz notes that Mynsinger was using older sources. Georges Boka (1994). Rembrandt's Nightwatch: The Mystery Revealed, 88 (Boulanger-LithoChrome Inc. Montreal).
Thanks to The American Kennel Club Library for providing me with the translation of portions of Aldrovandus contained in an Appendix XIV of Edward Ash, Dogs: Their History and Development (London 1927).
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