Thursday, May 27, 2010

Explosives Detection Canine Teams Increase at Airports and Rail Systems, but Coverage Is Still Thin

Finding hard statistics about government canine programs can be difficult. The Secret Service, for instance, considers the number of explosives detection canine teams it deploys to be sensitive information. Most government websites provide rather generic information with cute pictures of puppies that will be trained for various purposes, but say little about numbers and costs.

The Government Accountability Office has, however, issued some reports with useful details for those of us who want to get some quantitative data about canine programs. A report on the explosives detection canine teams deployed by the Transportation Safety Administration (GAO-08-933R) provides some details about the progress of the Department of Homeland Security in deploying an additional 200 explosives detection teams assigned to air and rail safety. This number is to be added to the approximately 425 explosives detection canine teams assigned to airports and mass transit systems in 2007, when the 9/11 Commission Act (PL 110-53) mandated the increase of 200 teams. The fiscal year 2011 budget of the Department of Homeland Security anticipates another 275 explosives detection canine teams, over 200 of which will be at airports.

The Transportation Security Administration’s National Explosive Detection Canine Team Program (NEDCTP) assigns most teams to airports. In 2008, 370 teams were deployed at 69 airports, while 56 teams were deployed to 14 mass transit systems and railways. In 2009, there were 88 teams at 15 mass transit and rail systems. Assignments of teams are based in part on proximity of a rail system to critical infrastructure, so for Amtrak, for instance, the largest concentration of canine teams is along the Northeast Corridor. In addition to patrolling the facilities to which they are assigned, dogs also screen cargo and participate in joint missions, called Visible Intermodal Prevention and Response (VIPR) missions, which involve target deployments of participants from various agencies for specific objectives. Dogs are generally supposed to be visible at airports and rail stations on the theory that their presence may discourage terrorists and criminals. Cargo screening also includes patrolling facilities serving overseas military objectives.

In 2008, aviation teams under the NEDCTP received $36.3 million, mass transit teams received $5.5 million, air cargo inspection received $7 million, and Iraq Supplemental received $20 million (also air cargo). The NEDCTP director is in offices of the TSA headquarters in Arlington, Most training and evaluation is done at the Defense Military Working Dog School at Lackland Air Force Base near San Antonio (known to law enforcement nationwide as “dog school”).

Canine teams supplied by state and local law enforcement to airports and rail systems receive a TSA subsidy, capped at approximately $50,000 per year, but the state and local agencies must agree to devote 80% of the subsidized team’s time to the operational environment—i.e., to the airport or mass transit facility. About 500 state and local canine teams receive this support at present. The dogs one sees deployed at Penn Station in New York City may be wearing NYPD vests, but a significant part of the team’s expenses (including part of the officer’s salary) come from federal sources.

The GAO report describes the NEDCTP training as consisting of:

• Two months of learning to identify several explosive odors.
• A ten-week training course at Lackland where teams learn to detect explosive odors in environments such as aircraft and mass transit terminals, luggage, vehicles, cargo, and buildings.
• A two-month acclimation period.
• A 14-day “training mission” in an operational environment.

NEDCTP trains about 18 classes per year, each with 12 student teams, producing about 216 dogs annually. Dogs must be recertified annually. Some teams are taught to work “in maritime mode” for the U.S. Coast Guard.

The number of skilled canine teams is steadily increasing, and more will be certified through the end of 2010. To have an adequate number of dogs and personnel, the Department of Homeland Security cannot rely solely on dogs that it breeds at its Canine Breeding and Development Center, which began operations in 1999. Many dogs are acquired from the private sector or from nonprofit organizations. Although the number of dogs is increasing, only about six dogs at the average airport, and about six dogs per mass transit system, with most dogs working only one shift per day, means that the responsibilities of canine team are still spread quite thin.

Tuesday, May 18, 2010

Police Dogs Never Quit Even If They're Fired, or How to Ruin Your Daughter's Party

The alert of a narcotics detection dog can be a scary thing. In an aggressive alert, the dog might bark and growl, but it is generally at the end of a lead while the other end is being held a police handler.

Imagine your household pet suddenly alerting to strangers on the street, or guests in your home.

A resident of New Paltz obtained a large mixed breed dog from a local SPCA. Afraid the dog might run away, she asked her vet to chip the dog. The vet, before beginning the procedure, scanned the dog and found there was already a chip at the back of the dog’s neck.

This was a depressing discovery for the new owner. The dog had been lost and ended up in the pound. If the prior owner were found, she would have to return the dog. But a check of the chip number with the manufacturer revealed that the prior owner was the New York City Police Department, which had let the dog go as a cost-cutting measure. The dog was supposed to be placed in a home, according to an NYPD official, but something had apparently gone wrong. In any case, the city did not want the dog back. There was also no need to chip him, since the new owner’s contact information could be entered in the database of the chip manufacturer.

There were advantages to discovering the dog’s history. The new owner learned the dog was a Rottweiler-bloodhound mix and was told the dog’s name and age. The dog had been trained as a search and rescue dog but had also received basic police dog training, including narcotics detection training. The NYPD official explained what narcotics detection was and mentioned something about the dog having an alert for certain drugs.

Some months later, the owner’s daughter had a party. The teenagers were having a good time when a new boy arrived. After walking around the living room, the boy came close to the dog, which began growling. The dog backed the boy towards the front door, the growling getting louder as everyone became quiet. Frightened, the boy ran from the house.

The dog’s new owner remembered what she had heard about the dog’s brief training in narcotics detection and guessed the rest. She confronted the boy.

“Have you been smoking something?”

The boy admitted he had and she asked him to go home.

I wonder if police departments facing canine downsizing situations have realized the marketing potential of placing a narcotics detection dog. “Worried about your children smoking pot? A slightly used drug dog can keep your home drug-free!”

A cadaver dog, on the other hand, might not be such a good idea. You could learn more about what’s in your neighbors’ yards than would be good for you.

Sunday, May 16, 2010

U.S. v. Stevens, Animal Cruelty, and Proposed Legislation Criminalizing Sales of Animal Crush Videos

The U.S. criminal code, at 18 U.S.C. 48, imposed a fine and potential imprisonment for five years for anyone who “knowingly creates, sells, or possess a depiction of animal cruelty with the intention of placing that depiction in interstate commerce or foreign commerce for commercial gain.” Exceptions were provided for a depiction that has “serious religious, political, scientific, educational, journalistic, or artistic value.” A depiction of animal cruelty was defined as “any visual or auditory depiction, including any photograph, motion-picture film, video recording, electronic image, or sound recording of conduct in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed, if such conduct is illegal under Federal law or the law of the State in which the creation, sale, or possession takes place, regardless of whether the maiming, mutilation, torture, wounding, or killing took place in the State.”

Congress particularly wanted to stop the market for “crush videos” sold to people with sexual fetishes, often showing women slowly crushing animals to death while wearing high heeled shoes. The actions depicted are prohibited under animal cruelty laws of probably every state. In the case that came before the U.S. Supreme Court, the prosecution was of Robert J. Stevens, who ran a business, Dogs of Velvet and Steel, which included an internet site with posted videos of pit bull fights from Japan, as well as older footage of dog fights from the U.S. that allegedly took place in the 1960s and 1970s. Stevens was indicted, and a federal district court jury convicted him of all counts. He was sentenced to 37 months in prison and appealed. The Third Circuit reversed, finding 18 U.S.C. 48 unconstitutional, and the Supreme Court granted certiorari.

Chief Justice Roberts wrote the majority opinion, in which seven justices joined. Only Samuel Alito dissented. The court’s conclusions were not based on approval of the acts shown in Stevens’ videos, but rather because he was convicted under a statute that might, sooner or later, be applied to restrict depictions of activities, such as hunting, that are not constitutionally prohibited, even if this was not the intention of the drafters of the statute. If a statute has such a potential for overbreadth, the unfortunate consequence is that the solution is to declare it invalid, meaning that Congress must try again before it can be used to convict anyone whose behavior could properly be outlawed.

Roberts acknowledged that as far back as 1641, the Massachusetts Bay Colony prohibited “Tirranny and Crueltie towards any bruite Creature which are usuallie kept for man’s use,” but noted this prohibited acts, not depictions of acts. 18 U.S.C. 48, Roberts notes, “nowhere requires that the depicted conduct be cruel” It criminalizes any depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed.” Wounded and killed are problem words. Because of the fact that the act may not have to take place in a state for the depiction to be unlawful in that state, this means that a film of hunting in Montana that makes its way to the District of Columbia, where hunting is illegal, could result in a prosecution under the statute. (The District of Columbia, Puerto Ricko, the Virgin Islands, and Guam and other territories are states for purposes of 18 U.S.C. 48.)

The Government argued that it would not attempt enforcement in situations such as hunting, but Roberts concluded that the court could “not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” Unfortunately, I agree with Roberts on this. It is too easy to imagine law school arguments against films about hunting being picked up by certain animal rights groups, then reaching the attention of a federal prosecutor who shares such views. What is extreme from one person’s view may be common sense from another’s. Bill Clinton, when signing 18 U.S.C. 48 into law in 1999, apparently conceived of it as precluding wanton cruelty to animals designed to appeal to a prurient interest in sex, not as a ban on dog fight depictions. (Michael Vick’s troubles were still in the future.)

Justice Alito, in his dissent, observes that the majority decision has “the practical effect of legalizing the sale” of crush videos and “is likely to spur a resumption of their production.” Because there are enough morons out there who enjoy dog fighting or find crushing animals to be sexually thrilling, I am quite sure he is correct. Alito argues that hunting falls “comfortably within the exception set out in § 48(b).” I would like to think so, and it pains me to disagree with the only Justice who put animals first in this debate, but I believe that one has to take into account the extremes to which too many citizens are apt to push legal arguments (for any purpose they can justify).

U.S. v. Stevens, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

On April 21, Representative Elton Gallegly (R.-CA, including Ventura and Santa Barbara counties) introduced legislation (H.R. 5092) to outlaw crush videos. As of this writing it has 245 co-sponsors, meaning it will pass. It is presently being reviewed by the House Committee of the Judiciary, whose staff is no doubt making sure it can withstand a Supreme Court review. For a list of co-sponsors, see the Library of Congress website. Unfortunately, this legislation is drafted very narrowly, probably to assure it will pass, and prohibits depictions of animals "being intentionally crushed, burned, drowned, or impaled," which would seem not to cover videos of dog fights.

Justice Alito added an appendix to his dissent, summarizing state statutes prohibiting animal cruelty. Because it is a useful summary, I include it below:

Alaska Stat. §11.61.140(c)(4) (2008) (“It is a defense to a prosecution under this section that the conduct of the defendant . . . was necessarily incidental to lawful fishing, hunting or trapping activities”)
Arizona Rev. Stat. Ann. §§13–2910(C)(1), (3) (West Supp. 2009) (“This section does not prohibit or restrict . . . [t]he taking of wildlife or other activities permitted by or pursuant to title 17 . . . [or] [a]ctivities regulated by the Arizona game and fish department or the Arizona department of agriculture”)

Arkansas Code Ann. §5–62–105(a) (Supp. 2009) (“This subchapter does not prohibit any of the following activities: . . . (9) Engaging in the taking of game or fish through hunting, trap-ping, or fishing, or engaging in any other activity authorized by Arkansas Constitution, Amendment 35, by §15–41–101 et seq., or by any Arkansas State Game and Fish Commission regulation promulgated under either Arkansas Constitution, Amendment 35, or statute”)
California Penal Code Ann. §599c (West 1999) (“No part of this title shall be construed as interfering with any of the laws of this state known as the ‘game laws,’ . . . or to interfere with the right to kill all animals used for food”)

Colorado Rev. Stat. Ann. §18–9–201.5(2) (2009) (“In case of any conflict between this part 2 [prohibiting cruelty to animals] or section 35–43–126, [Colo. Rev. Stat.], and the wildlife statutes of the state, said wildlife statutes shall control”), §18–9–202(3) (“Nothing in this part 2 shall be construed to amend or in any manner change the authority of the wildlife commission, as established in title 33, [Colo. Rev. Stat.], or to prohibit any conduct therein authorized or permitted”)

Connecticut Gen. Stat. §53–247(b) (2009) (“Any person who maliciously and intentionally maims, mutilates, tortures, wounds or kills an animal shall be fined not more than five thousand dollars or imprisoned not more than five years or both. The provisions of this subsection shall not apply to . . . any person . . . while lawfully engaged in the taking of wildlife”)
Delaware Code Ann., Tit. 11, §1325(f) (2007) (“This section shall not apply to the lawful hunting or trapping of animals as provided by law”)

Florida Stat. §828.122(9)(b) (2007) (“This section shall not apply to . . . [a]ny person using animals to pursue or take wildlife or to participate in any hunting regulated or subject to being regulated by the rules and regulations of the Fish and Wildlife Conservation Commission”)

Georgia Code Ann. §16–12–4(e) (2007) (“The provisions of this Code section shall not be construed as prohibiting conduct which is otherwise permitted under the laws of this state or of the United States, including, but not limited to . . . hunting, trapping, fishing, [or] wildlife management”)

Hawaii Rev. Stat. §711–1108.5(1) (2008 Cum. Supp.) (“A person commits the offense of cruelty to animals in the first degree if the person intentionally or knowingly tortures, mutilates, or poisons or causes the torture, mutilation, or poisoning of any pet animal or equine animal resulting in serious bodily injury or death of the pet animal or equine animal”)

Idaho Code §25–3515 (Lexis 2000) (“No part of this chapter shall be construed as interfering with, negating or preempting any of the laws or rules of the department of fish and game of this state . . . or to interfere with the right to kill,slaughter, bag or take all animals used for food”)

Illinois Comp. Stat., ch. 510, §70/13 (West 2006) (“In case of any alleged conflict between this Act . . . and the ‘Wildlife Code of Illinois’ or ‘An Act to define and require the use of humane methods in the handling, preparation for slaughter, and slaughter of livestock for meat or meat products to be offered for sale’, . . . the provisions of those Acts shall prevail”), §70/3.03(b)(1) (“For the purposes of this Section, ‘animal torture’ does not include any death, harm, or injury caused to any animal by . . . any hunting, fishing, trap-ping, or other activity allowed under the Wild-life Code, the Wildlife Habitat Management Areas Act, or the Fish and Aquatic Life Code” (footnotes omitted))

Indiana Code §35–46–3–5(a) (West 2004) (subject to certain exceptions not relevant here, “this chapter [prohibiting “Offenses Relating to Animals”] does not apply to . . . [f]ishing, hunting, trapping, or other conduct authorized under [Ind. Code §]14–22”)

Iowa Code §717B.2(5) (2009) (“This section [banning “animal abuse”] shall not apply to . . . [a] person taking, hunting, trapping, or fishing for a wild animal as provided in chapter 481A”), §717B.3A(2)(e) (“This section [banning “animal torture”] shall not apply to . . . [a] person taking, hunting, trapping, or fishing for a wild animal as provided in chapter 481A”)

Kansas Stat. Ann. §21–4310(b)(3) (2007) (“The provisions of this section shall not apply to . . . killing, attempting to kill, trapping, catching or taking of any animal in accordance with the provisions of chapter 32 [Wildlife, Parks and Recreation] or chapter 47 [Livestock and Domestic Animals] of the Kansas Statutes Annotated”)

Kentucky Rev. Stat. Ann. §§525.130(2)(a), (e) (Lexis 2008) (“Nothing in this section shall apply to the killing of animals . . . [p]ursuant to a license to hunt, fish, or trap . . . [or] [f]or purposes relating to sporting activities”), §525.130(3) (“Activities of animals engaged in hunting, field trials, dog training other than training a dog to fight for pleasure or profit, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section”)

Louisiana Rev. Stat. Ann. §14:102.1(C)(1) (West Supp. 2010) (“This Section shall not apply to . . . [t]he lawful hunting or trapping of wildlife as provided by law”)

Maine Rev. Stat. Ann., Tit. 17, §1031(1)(G) (West Supp. 2009) (providing that hunting and trap-ping an animal is not a form of prohibited animal cruelty if “permitted pursuant to” parts of state code regulating the shooting of large game, inland fisheries, and wildlife)

Maryland Crim. Law Code Ann. §10–603(3) (Lexis 2002) (“Sections 10–601 through 10–608 of this subtitle do not apply to . . . an activity that may cause unavoidable physical pain to an animal, including . . . hunting, if the person performing the activity uses the most humane method reasonably available”)

Michigan Comp. Laws Ann. §§750.50(11)(a), (b) (West Supp. 2009) (“This section does not prohibit the lawful killing or other use of an animal, including . . . [f]ishing . . . [h]unting, [or]trapping [as regulated by state law]”), §750.50b(9)(a), (b) (“This section does not pro-hibit the lawful killing or other use of an animal, including . . . [f]ishing . . . [h]unting, [or]trapping [as regulated by state law]”)

Missouri Rev. Stat. §578.007(3) (2000) (“The provisions of sections 578.005 to 578.023 shall not apply to . . . [h]unting, fishing, or trapping as allowed by” state law)

Montana Code Ann. §45–8–211(4)(d) (2009) (“This section does not prohibit . . . lawful fishing, hunting, and trapping activities”)

Nebraska Rev. Stat. §28–1013(4) (2008) (exempting “[c]ommonly accepted practices of hunting, fishing, or trapping”)

Nevada Rev. Stat. §§574.200(1), (3) (2007) (provisions of Nevada law banning animal cruelty “do not . . . [i]nterfere with any of the fish and game laws . . . [or] the right to kill all animals and fowl used for food”)

New Hampshire Rev. Stat. Ann. §644:8(II) (West Supp. 2009) (“In this section, ‘animal’ means a domes-tic animal, a household pet or a wild animal in captivity”)

New Jersey Stat. Ann. §4:22–16(c) (West 1998) (“Nothing contained in this article shall be construed to prohibit or interfere with . . . [t]he shooting or taking of game or game fish in such manner and at such times as is allowed or provided by the laws of this State”)

New Mexico Stat. Ann. §30–18–1(I)(1) (Supp. 2009) (“The provisions of this section do not apply to . . . fishing, hunting, falconry, taking and trap-ping”)

New York Agric. & Mkts. Law Ann. §353–a(2) (West 2004) (“Nothing contained in this section shall be construed to prohibit or interfere in any way with anyone lawfully engaged in hunting, trap-ping, or fishing”)

North Carolina Gen. Stat. Ann. §14–360(c)(1) (Lexis 2009) (“[T]his section shall not apply to . . . [t]he lawful taking of animals under the jurisdiction and regulation of the Wildlife Resources Com-mission . . .”)

North Dakota Cent. Code Ann. §36–21.1–01(5)(a) (Lexis Supp. 2009) (“ ‘Cruelty’ or ‘torture’ . . . does not include . . . [a]ny activity that requires a licenseor permit under chapter 20.1–03 [which governs gaming and other licenses]”)
Oregon Rev. Stat. §167.335 (2007) (“Unless gross negligence can be shown, the provisions of [certain statutes prohibiting animal cruelty] do not apply to . . . (7) [l]awful fishing, hunting and trapping activities”)

Pennsylvania, 18 Pa. Cons. Stat. §5511(a)(3)(ii) (2008) (“This subsection [banning killing, maiming, or poison-ing of domestic animals or zoo animals] shall not apply to . . . the killing of any animal or fowl pursuant to . . . The Game Law”), §5511(c)(1) (“A person commits an offense if he wantonly or cruelly ill-treats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care”)

Rhode Island Gen. Laws §4–1–3(a) (Lexis 1998) (prohibiting “[e]very owner, possessor, or person having the charge or custody of any animal” from engaging in certain acts of unnecessary cruelty), §§4–1–5(a), (b) (prohibiting only “[m]alicious” injury to or killing of animals and further providing that “[t]his section shall not apply to licensed hunters during hunting season or a licensed business killing animals for human consumption”)

South Carolina Code Ann. §47–1–40(C) (Supp. 2009) (“This section does not apply to . . . activity authorized by Title 50 [consisting of laws on Fish, Game,and Watercraft]”)

South Dakota Codified Laws §40–1–17 (2004) (“The acts and conduct of persons who are lawfully engaged in any of the activities authorized by Title 41 [Game, Fish, Parks and Forestry] . . . and persons who properly kill any animal used for food and sport hunting, trapping, and fishing as authorized by the South Dakota Department of Game, Fish and Parks, are exempt from the provisions of this chapter”)

Tennessee Code Ann. §39–14–201(1) (2010 Supp.) (“ ‘Animal’ means a domesticated living creature or a wild creature previously captured”), §39–14–201(4) (“[N]othing in this part shall be construed as prohibiting the shooting of birds or game for the purpose of human food or the use of animate targets by incorporated gun clubs”)

Texas Penal Code Ann. §42.092(a)(2) (West Supp. 2009) (“ ‘Animal’ means a domesticated living creature, including any stray or feral cat or dog, and a wild living creature previously captured. The term does not include an uncaptured wild living creature or a livestock animal”),§42.092(f)(1)(A) (“It is an exception to the application of this section that the conduct engaged in by the actor is a generally accepted and otherwise lawful . . . form of conduct occurring solely for the purpose of or in support of . . . fishing, hunting, or trapping”)

Utah Code Ann. §76–9–301(1)(b)(ii)(D) (Lexis 2008) (“ ‘Animal’ does not include . . . wildlife, as defined in Section 23–13–2, including protected and unprotected wildlife, if the conduct toward the wildlife is in accordance with lawful hunting, fishing, or trapping practices or other lawful practices”), §76–9–301(9)(C) (“This section does not affect or prohibit . . . the lawful hunting of, fishing for, or trapping of, wildlife”)

Vermont Stat. Ann., Tit. 13, §351b(1)(2009) (“This subchapter shall not apply to . . . activities regulated by the department of fish and wildlife pursuant to Part 4 of Title 10”)

Virginia Code Ann. §3.2–6570D (Lexis 2008) (“This section shall not prohibit authorized wildlife management activities or hunting, fishing or trapping [as regulated by state law]”)

Washington Rev. Code §16.52.180 (2008) (“No part of this chapter shall be deemed to interfere with any of the laws of this state known as the ‘game laws’ . . . or to interfere with the right to kill animals to be used for food”)

West Virginia Code Ann. §61–8–19(f) (Lexis Supp. 2009) (“The provisions of this section do not apply to lawful acts of hunting, fishing, [or] trapping”)

Wisconsin Stat. §951.015(1) (2007–2008) (“This chap-ter may not be interpreted as controverting any law regulating wild animals that are subject to regulation under ch. 169 [regulating, among other things, hunting], [or] the taking of wild animals”)

Wyoming Stat. Ann. §6–3–203(m)(iv) (2009) (“Nothing in subsection (a), (b) or (n) of this section shall be construed to prohibit . . . [t]he hunting,capture or destruction of any predatory animal or other wildlife in any manner not otherwise prohibited by law”)

Tuesday, May 11, 2010

Should Co-Worker's Asthma Trump Employee's Need for Service Dog?

An article appearing in the New York Times of May 11, 2010, describes an employee of the City of Indianapolis who is allergic to paprika with a reaction potentially so severe that it could be fatal. Steven Greenhouse, "When Treating One Worker's Allergy Sets Off Another's." The employee, Emily Kysel, obtained a service dog trained to alert her to the presence of paprika by jumping on her. The dog cost $10,000. The city initially permitted her to bring this dog to work but a fellow employee, allergic to dogs, suffered an asthma attack. Ms. Kysel’s boss then told her she could no longer bring the dog and advised her that if she did not report for work without the dog, she would be put on indefinite unpaid leave. She filed a complaint with the Equal Employment Opportunity Commission, pending as of this writing.

Two allergists wrote letters on behalf of Ms. Kysel, and the article indicates that she had almost died from eating chili five years before her problems with Indianapolis. She has had to go home from work when fellow employees were eating food with paprika near her, and when permitting her to bring the dog to work—before the allergic reaction of the fellow employee to the dog—employees were told not to have food with paprika in the office. The article mentions that blind employees are permitted to bring guide dogs to work but it is not specified if any such employees and dogs are in the unit where Ms. Kysel works. If so, it would appear that some shifting of offices might solve the problem, and a failure to do so could buttress Ms. Kysel’s discrimination argument. Such a situation would also suggest that the city is favoring one type of service dog over others, but again the circumstances of the guide dog users are not described in the article.

Cases have considered conflicts between individuals with service dogs and individuals with allergies, as has the Department of Transportation in a lengthy discussion in the final air carrier access rules. Generally, the rulings have concluded that an individual with an annoying but not dangerous allergy must accept the presence of the dog, though the facility should attempt to find a way to keep the individuals out of each other’s way. In Lockett v. Catalina Channel Express, 496 F.3d 1061 (9th Cir. 2007), a blind passenger with a guide dog could not be excluded from the Commodore Lounge of a ferry to Catalina despite the fact that a no-animals policy for the lounge was introduced for the comfort of a passenger with allergies.

In the preamble to its air carrier access rules, the Department of Transportation stated:

“Forcing the passenger with the service animal to move to another seat to make another passenger more comfortable, let alone denying transportation in the cabin to the service animal or its user, is not an option.


“If a passenger provides credible verbal assurances, or medical documentation, that he or she has an allergy to a particular sort of animal that rises to the level of a disability (e.g. produces shock or respiratory distress that could require emergency or significant medical treatment), and there is a service animal of that kind seated nearby, the carrier should try to place as much distance as possible between the service animal and the individual with the allergy. Depending on where the passengers are initially seated, this could involve moving both passengers. For example, if both are seated toward the center of the cabin, one could be moved to the front and the other to the back.

“It is unlikely that the mere presence of an animal in the same cabin would, by itself, even if located at a distance from an allergic passenger, produce a severe allergic reaction rising to the level of a disability. However, if there was strong evidence that this was the case, it could be necessary to rebook one of the passengers on another flight. Since one disability does not trump another, the carrier should consider a disability-neutral means of determining which passenger would have to be rebooked (e.g., which passenger made the earlier reservation). We emphasize that we expect any such situation to be extremely rare, and that carriers should not rebook a passenger absent strong evidence that the mere presence of an animal in the cabin, even in a location distant from the allergic passenger, would produce an allergic reaction rising to the level of a disability.

“There may be situations in which, with respect to a passenger who brings a very serious potential allergy situation to the attention of your personnel, it is appropriate to seek a medical certificate for the passenger.” 72 Fed. Reg. 27614, at 27655, 27660 (5/13/2008)

It is hard for me to believe that the City of Indianapolis is not a large enough employer, with a considerable amount of office space, for some accommodation not to be possible for both employees with their separate allergies. Nevertheless, it is conceivable that seniority or some other objective criterion may have to determine which employee has priority in this situation.

In this context, though I don’t like it, one argument could be that a stern enforcement of the no-paprika policy could be viewed as a factor weighing in the dog-allergic employee’s favor. Ms. Kysel’s situation differs from someone who suffers seizures who has a seizure-response or seizure-alert dog. With a service dog whose functions are connected with the handler’s seizures, there is nothing the employer can do to limit the possibility of the dog being needed in the work environment. With a dog that alerts to a spice that might cause something like a seizure, however, the employer can prohibit employees from bringing that spice to the office. Or is this na├»ve? Some employees, according to the article, expressed skepticism as to Ms. Kysel’s allergy, referring to it as an oddity. Without a dog to detect their violations of the anti-paprika rule, would they be likely to honor it? Would Ms. Kysel be in constant danger of someone intentionally or accidentally bringing a food with paprika into the office? Would other employees always know the food contained paprika? It would seem that a no-food policy would have to be implemented to be sure that no paprika comes into the office. Even then, with the sensitivity of a dog’s olfactory system, would the dog alert when an employee returns from lunch with paprika on his breath?

I spoke twice at the ABA Tax Section meetings in Washington, DC, on May 7 and 8 regarding the deductibility of service dogs, and shifting away from the access issue, I also think there are interesting tax questions regarding Ms. Kysel’s dog. I have no knowledge of whether she deducted the acquisition cost of the dog, as likely permitted under Section 213 of the Internal Revenue Code, and Regulation 1.213-1(e). The dog was acquired for a medical condition and probably would not have been acquired (at least at the $10,000 price tag) had it not been for that condition. The training and maintenance costs are deductible under other IRS pronouncements, and the condition that the dog provides a service for is a physical disability, as specified in Publication 502. (I have argued in several other places that I do not believe Publication 502’s restriction of service dog functions to physical disabilities is valid. See, e.g., Tax Notes, August 24, 2009.) But what if Ms. Kysel returns to work without the dog? Does the dog still provide a service function if there is no paprika in Ms. Kysel’s house and she does not enter markets or restaurants where it may be present? I think the answer is still yes, because she may have to avoid contact with paprika even in environments where it is not frequently present. Presumably the dog, like narcotics and explosives detection dogs, requires occasional testing to make sure it continues to alert to the target odor, which would also be a continuing expense.

As the world of service dogs becomes more complex, I believe that the IRS, as the City of Indianapolis in Ms. Kysel’s case, will begin to face some difficult situations.