Friday, September 21, 2012

Fish & Wildlife Says Wyoming Wolves Can Be Hunted Back to 1999 Levels

Additional Note.  For an indication of how ridiculous the idea of letting state fish and game authorities control gray wolf populations is, see the editorial of Lawrence Downs in the New York Times, December 28, 2013 ("Wolf Haters").

The U.S. Fish and Wildlife Service has issued final rules that remove the gray wolf in Wyoming from the list of endangered and threatened wildlife.  This finalizes the delisting that was proposed by the agency in 2011 and discussed in a prior blog.  According to Fish and Wildlife, “Wyoming’s gray wolf population is stable, threats are sufficiently minimized, and a post-delisting monitoring and management framework has been developed.“  The Yellowstone Experimental Population Area established in 1994 to facilitate reintroductions to the Park is also removed. 

In 1978, Fish and Wildlife classified the gray wolf (Canis lupus) as endangered at a species level throughout the coterminous 48 states and Mexico, excepting only Minnesota where the classification level was “threatened” rather than endangered.  The history of the Wyoming wolves and their various designations is replete with litigation and Congressional meddling, described in soporific detail in the preamble to the present rulemaking.  A useful timeline is posted on the website of EarthjusticeThrough it all, as discussed in another blog, Fish and Wildlife has been determinedly washing its hands of the gray wolf preservation business, presumably to free up staff and time for other bureaucratic sports. 

Approximately 250,000 comments were submitted regarding the 2011 delisting proposal, but Fish and Wildlife had little trouble ignoring almost all of them. 

Wolves Become Game Animals

Wolf Trophy Game Management Area and Yellowstone National Park
Wyoming wolves will now, according to Fish and Wildlife to “be managed as game animals year-round or protected in about 38,500 square kilometers (km2) (15,000 square miles (mi2) in the northwestern portion of the State (15.2 percent of Wyoming).”  Wolves will be designated as predatory animals everywhere else in Wyoming.  The map shows the year-round and seasonal wolf trophy management areas.  Only a small portion of the area, with a minimal wolf population, is seasonal.  Thus, wolves can now be hunted most of the time most everywhere in Wyoming.   

Wyoming has committed to maintaining a population of ten breeding pairs and at least 100 wolves in portions of Wyoming outside Yellowstone National Park and the Wind River Indian Reservation.  This apparently assumes about ten packs of ten wolves per pack since packs will generally have only one breeding pair.  Fish and Wildlife assures us:

“Wyoming intends to maintain an adequate buffer above minimum population objectives to accommodate management needs and ensure uncontrollable sources of mortality do not drop the population below this minimum population level.”

It must be doubted whether the wolves will take much comfort in such assurances.  As to how many wolves are in Yellowstone National Park, the rules release predicts there will be between 50 and 100 wolves and 5 to 10 packs, but there may only be four to six breeding pairs.  The Wind River Reservation primarily has isolated wolves than only occasionally form packs. 

Wolf Packs in Montana and Wyoming
That means that the objective is to have “at least 15 breeding pairs and at least 150 wolves statewide,” including the wolves of Yellowstone.  The objective for Montana, Idaho, and Wyoming combined is about 30 breeding pairs and at least 300 wolves in total.  Fish and Wildlife says that gene flow is expected throughout this small group, but acknowledges that this may have to be agency-managed (explained later as "moving individual wolves or their genes into the affected population segment").  The distribution of wolf packs at the end of 2011 is illustrated in the second map.

The objective provided in the rules release is less than the current population of wolves, meaning that Fish and Wildlife is content to have the current populations hunted or exterminated in significant numbers.  The current numbers are stated as follows:

“By the end of 2011, the NRM [Northern Rocky Mountain] gray wolf population included a minimum population estimate of 1,774 wolves (including at least: 653 in Montana; 746 in Idaho; 328 in Wyoming; 18 in Washington; and 29 in Oregon) in 109 breeding pairs (including at least: 39 in Montana; 40 in Idaho; 27 in Wyoming; 2 in Washington; and 1 in Oregon).”

This means that the minimum objective being stated by Fish and Wildlife could effectively roll back the wolf population to the level that existed in the area around 1999 or 2000, with anything above that considered a buffer.  In responding to comments to its proposed rulemaking, Fish and Wildlife says the following:

“Although population decreases are expected in Idaho, Montana, and Wyoming, we expect that these reductions will be carefully managed so that populations are maintained well above recovery levels (perhaps around 1,000 wolves will be maintained across the NRM DPS long term). Our expectation for gradual reductions was verified in 2009 and 2011 (the first 2 years of State management including a hunting season) where the population remained relatively stable (technically, slight increases were documented each year) even in the face of substantial mortality levels. Measurable declines across the region are expected to begin to occur in 2012. In Wyoming, we expect the total statewide population will be reduced between 10 to 20 percent in 2012 with continued gradual reductions thereafter, if appropriate.”

The last phrase in this paragraph, “if appropriate,” seems nonsensical.  Why would it not be appropriate if the minimum levels of animals are being left alive? 

Wolves in Idaho, Montana, and Wyoming from 1980 to 2011
It is difficult to understand how such numbers—even assuming that the minimum numbers will for some time stay below actual numbers—can satisfy anyone that the population is sufficiently stable that the wolf can be labeled a game animal. Wayne and Hedrick (2011) asked "what will happen if western states allow the population to be hunted to the federal minimum requirement for recovery ...?  Such small populations would also be more vulnerable to random demographical and genetic affects and could sink far below the minimum numbers." Wayne, R., and Hedrick, P. (2011). Genetics and Wolf Conservation in the American West: Lessons and Challenges.  Heredity, 107, 16-19. DOI:10.1038/hdy.2010.147.  

Fish and Wildlife praises Wyoming’s decision to recognize that wolves in most trophy areas could never be considered predatory animals.  In other words, Wyoming has evolved from saying that you could sometimes shoot a wolf in the trophy area as a predator to saying that you need a hunting license to shoot a wolf in a trophy area.  This, according to Fish and Wildlife, is “a substantial improvement over current Wyoming law.”  Many more such improvements will probably make wolves extinct. (Hunting wolves in the European tradition was always intended to eliminate a competing predator, though ritual elements entered into hunting and capturing of wolves by North American Native Americans.  It is safe to say that for most of the hunters who will be bagging wolves in the trophy areas of Wyoming, this is target practice.)

How Wolves Will Be Hunted

Gray Wolf Hunt Areas Established by the Wyoming Game and Fish Department
To understand how Wyoming’s idea of conservation will actually work, one must look at materials on the website of the Wyoming Game and Fish Department (WGFD).  WGFD has established 12 hunt areas, as shown by the red lines on its map.  For each hunt area, there is a season, as indicated on the table of season dates provided in a brochure issued by WGFD.  For all but Hunt Area 12, the hunting season is from October 1 to December 31. 

Each hunt area has a mortality quota, ranging from 1 to 8, totaling 52 possible kills per year. See the table below.  If the mortality quota for a hunt area is reached before December 31, the hunting season closes in that area.  The regulations require that prior to hunting, “it is the hunter’s responsibility to confirm the hunt area the person intends to hunt is open.  The status of hunt area closures shall be available twenty-four (24) hours a day by calling toll-free 1-800-264-1280.” 

Gray wolves are to be taken only with firearms and archery equipment from a half hour before sunrise to a half hour after sunset.  It is illegal to take a gray wolf by using radio tracking equipment.  According to the Fish and Wildlife release, approximately 2,000 wolves in Idaho, Montana, and Wyoming have been radio-collared at one time or another, so presumably Wyoming is hoping that hunters won’t obtain equipment that can tap into the frequencies of the wolf collars.  Wyoming has begun putting radio collars on wolves in order to verify numbers. 

Each hunter is limited to one gray wolf per calendar year.  That applies, of course, to hunting of wolves, not to the elimination of wolves classified as predators.  Use of aircraft in hunting trophy animals is prohibited, though they may be used to pursue wolves in areas where they are deemed predators. 

Trophy wolf pelts are to be turned in for registration purposes:

“Hunters taking a gray wolf in the hunt areas … shall retain the pelt and skull from each gray wolf for registration purposes. Even if the skull is damaged, it shall accompany the pelt for registration purposes. Visible external evidence of sex shall remain naturally attached to the pelt. The pelt and skull shall be presented in an unfrozen condition to allow collection of biological samples and to determine the age and sex of the gray wolf.”

Hunt Seasons by Area. Section 4(i) provides that gray wolf hunting is closed in that part of Area 6 in the John D. Rockefeller Jr. Memorial Parkway.  Section 4(j) explains that in Section 12, gray wolfes are predators from March 1 to October 14.
The hunter is to call a toll-free number within 24 hours of taking a gray wolf and report where the kill occurred. Reporting is required of wolves taken as predators as well.  The pelt is to be turned in within five days, though this is not required if a wolf is taken in an area where it is deemed predatory. WGFD nevertheless encourages turning in predatory wolf pelts “to aid the department efforts to monitor wolf populations and genetic interchange throughout the state.” If the wolf was wearing an electronic device, that is also to be turned in, presumably to be worn by some other unlucky wolf. 

For Hunt Area 12, wolves are game animals from October 15 through the last day of February, though the hunting season ends on December 31.  They are predatory animals from March 1 through October 14.  No license is needed in the predatory period. It will be interesting to see how long wolves can be found in Hunt Area 12. I suggest that any documentary filmmaker pursuing this story focus on Area 12. 

Purchasing a gray wolf hunting license costs a resident of Wyoming $18, but a nonresident $180.  A conservation stamp costing $12.50 must also be purchased.  A nonresident cannot hunt a trophy game animal “unless accompanied by a licensed professional guide or a resident guide.” It is apparent that Wyoming does not even see allowing the hunting of wolves as a way of raising cash. 

Safe Areas

Hunting is prohibited in the Grand Teton National Park, but the preamble points out that most wolves that spend time in that park also spend time in areas near it where hunting will be permitted.  Apparently most wolves in Yellowstone National Park spend most of their time inside it, so they will at least have some peace as long as they remain conscious of Park boundaries.  The Forest Service has lands in Wyoming and other states with wolf populations, but the Forest Service “typically defers to States on hunting decisions.”  Thus, State-authorized hunting occurs in National Forests, Wilderness Areas, Wilderness Study Areas, and Bureau of Land Management lands. 


With these final rules, the Fish and Wildlife Service continues its theme-park approach to environmental conservation. It also continues to follow an agenda sympathetic to those political forces that always clamor for less regulation of anything for any reason.  Although this might sound like the beginning of a diatribe against Republicans, it is to be noted that much of the delisting activity is occurring under a Democratic administration. 

Fortunately for the wolves, environmental groups have lawyers and money and, according to news reports, a coalition of them is preparing a lawsuit.  The courts have helped the wolves before, when the Fish and Wildlife Service would not, and those of us who value these beleaguered ancestors of our dogs must hope they will do so again. 

Department of the Interior, Fish and Wildlife Service, Removal of the Gray Wolf in Wyoming From the Federal List of Endangered and Threatened Wildlife and Removal of the Wyoming Wolf Population’s Status as an Experimental Population,  77 Fed. Reg. 55530 (September 10, 2012)

Monday, September 10, 2012

VA Final Service Dog Rules Still Nix Psych Dogs, Hold to Foreign Outsourcing

Reference Note: An article appearing in the Quinnipiac Health Law Journal contains an incisive analysis of the VA's failure to provide service dogs for veterans with mental disabilities.  Alma Nunley (July 2014). Service Dogs for (Some) Veterans: Inequality in the Treatment of Disabilities by the Department of Veterans Affairs. Quinnipiac Health Law Journal, 17(2), 261-291

The Department of Veterans Affairs has finalized rules proposed in 2011 on service dogs. The VA says that its proposal was not intended to provide guidance concerning what service dogs could have access to VA facilities, only on what types of service dogs would be funded.  Dogs for veterans with mental health disabilities will still not be funded, unless a dog also has a function relating to a veteran’s sight, hearing, or mobility impairment.  The requirement that dogs be certified by one of two foreign-controlled umbrella associations is retained, and indeed reinforced because the VA now states that an organization must be a full member, not merely a candidate member of either association. 

In the end, the proposed rules have been adopted with only minor alterations, and the VA still expects only to fund expenses related to 100 new dogs a year, two-thirds of which will be guide dogs.   The VA received 98 comments on the rules proposal it issued in June 2011.  The rules as modified become effective on October 5, 2012.  The final rule is reproduced in full at the end of this piece.

VA Defines Service Dog for Funding Purposes Only

The final rules define service dogs as “guide or service dogs prescribed for a disabled veteran….”  Commenters had noted the circularity of the definition and had recommended that the VA adopt the definition given by the Department of Justice under the Americans with Disabilities Act.  The VA acknowledges that the definition is circular, but finds it adequate for its purposes and declines to change it, declaring that “the ADA and its implementing regulations are neither controlling nor informative with regard to the administration of benefits to veterans with service dogs.”  The circularity means that the VA has effectively avoided providing a useful definition. 

The VA says that its rules are designed for an entirely different purpose from the ADA:

“The ADA and its implementing regulations exclusively address the issue of access to public facilities by individuals with disabilities, whereas the purpose of [the VA’s] rule is to authorize benefits to a veteran with a service dog.  Access is not discussed in [the VA’s rules].”

This restricted objective of the VA rules is emphasized throughout the release accompanying the VA’s final rules. They are funding rules, not access rules. 

“We reiterate that this rulemaking does not address the issue of access to VA health care facilities by individuals accompanied by service dogs, and will not be used to determine whether a particular service dog will be allowed to enter a VA facility…. A certificate is required … only to enable the veteran to receive service dog benefits, but is not required to gain entry to VA facilities.  This rulemaking does not permit or prohibit the access of service dogs to VA health care facilities.” 

VA Drafting New Access Rule

The preamble notes that 40 U.S.C. 3103(a) states: “Guide dogs or other service animals accompanying individuals with disabilities and especially trained and educated for that purpose shall be admitted to any building or other property owned or controlled by the Federal Government on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public to the property.” 

The VA’s current access regulation, 38 CFR 1.212(a)(11), is much narrower: “Dogs and other animals, except seeing-eye dogs, shall not be brought upon property except as authorized by the head of the facility or designee.”

The VA release states that “we are in the process of amending § 1.218(a)(11) to be fully compliant with 40 U.S.C. 3103(a).” 

No Mention of Honoring America’s Veterans Act

The regulatory release makes no mention of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, which contains a section entitled: Use of Service Dogs on Property of the Department of Veterans Affairs.  That section of the Act revises the security and law enforcement section that applies to property under the jurisdiction of the Department of Veterans Affairs, 38 U.S.C. 901, to include a new subsection stating:

“(f)(1) The Secretary may not prohibit the use of a covered service dog in any facility or on any property of the Department or in any facility or on any property that receives funding from the Secretary.
(2) For purposes of this subsection, a covered service dog is a service dog that has been trained by an entity that is accredited by an appropriate accrediting body that evaluates and accredits organizations which train guide or service dogs.”

This certainly looks like an access rule, though it only requires that access be provided to dogs that meet the criteria that are now being used for a funding rule.  It does not specify animals that are to be denied access.  In theory, then, the Department could expand its access rule to permit “the use of” a non-covered service dog as well. 

The fact that this section (38 U.S.C. 901) was not mentioned in the preamble to the regulations would suggest that the regulation writers were not aware of it when they completed writing the preamble.  Nevertheless, the Act was signed by President Obama on August 6 and there should have been time to add a reference to a release published in the Federal Register on September 5.  Whether the reg writers were sloppy or disingenuous is not clear. 

Service Dogs for Visual, Hearing, or Substantial Mobility Impairments

The final rules provide funding for dogs for veterans “diagnosed as having a visual, hearing, or substantial mobility impairment.” Benefits will not be provided “for a dog to mitigate the effects of a mental illness that are not related to visual, hearing or mobility impairments.”  The preamble clarifies that veterans “diagnosed with a hearing or visual impairment will certainly not be deemed ineligible for service dog benefits because they also have a mental health impairment.” 

As to mobility impairments, the VA states that “if a veteran’s mental impairment manifests in symptoms that meet the definition of ‘chronic impairment that substantially limits mobility’ … and a service dog is clinically determined to be the optimal device to manage that mobility impairment, then such a veteran will be awarded service dog benefits.”  The dog must, however, “mitigate the effects of a visual, hearing, or mobility impairment.”  Thus, a dog that mitigates the effect of a mental illness of someone who has a hearing impairment, but which does not mitigate the effects of the hearing impairment (i.e., is not a hearing or signal dog) would not be funded by the VA.  If the dog alerted to an anxiety attack that produced a temporary deafness, but had no standard hearing dog functions, it would presumably also not be covered, unless this could be called a seizure disorder. Seizure disorders are specifically covered if the disorder “causes a veteran to become immobile during and after a seizure event,” so seizure alert dogs may be funded.  

Rationale for Not Covering Dogs for Mental Disabilities

The VA says that the reason it is not covering dogs for mental health conditions is “based on a lack of evidence to support a finding of mental health service dog efficacy.”  Citing “widely accepted training protocols” for guide, hearing, and mobility impairment dogs, the VA states:

“We are unaware of similarly vetted and accepted training protocols for mental health service dogs, or how assistance from such dogs could be consistently helpful for veterans to mitigate mental health impairments.” 

The VA does not dispute that many veterans have argued that mental health service dogs have improved the quality of their lives, but the agency insists that it “has not yet been able to determine that these dogs provide a medical benefit to veterans with mental illness.  Until such a determination can be made, VA cannot justify providing benefits for mental health service dogs.” 

This opens up the question of how a medical benefit from a mental health service dog (the release generally avoids using the term “psychiatric service dogs”) would be determined.  If a benefit is only demonstrated by a statistical improvement in generally accepted psychological measures in a clinical study of a sufficiently large sample of individuals using such dogs, then the VA can find some support for its position.  As described in a prior blog, the evidence from refereed psychiatric and psychological publications is inconsistent, with some studies finding improved psychological conditions and others not. If, on the other hand, a dog sits behind a veteran with PTSD in a movie line to give him some distance from those behind him while guarding his back, this may provide some temporary relief in a stressful situation and make it possible for the veteran to go to the movie in the first place. That is certainly a measurable benefit.  Guide dogs do not cure blindness, but they allow a blind person to function in ways that might otherwise be impossible.  It must be questioned whether the VA has posed the question of a mental health benefits from a service dog appropriately. 

Regardless of the ultimate criteria for determining effectiveness, more studies are in progress and the field of the psychological benefits of service dogs is not static.  The VA mentions a study in progress in Tampa, Florida.  A similar study was mentioned in a recent issue of the Army Medical Journal, as described in a prior blog.  It will be important to verify whether veterans and soldiers with service dogs reduce use of medications after getting dogs. 

The VA says here, as it had previously stated in its 2011 proposal, that although Congress has given it the authority to provide “service dogs trained for the aid of persons with mental illnesses, including post-traumatic stress disorder, to veterans with such illnesses” who are eligible for VA benefits, the statute, 38 U.S.C. 1714(c)(3), does not require it to do so.  The VA states that “if we ultimately determine that mental health dogs are appropriate treatment tools for mental health impairments, we will amend our regulations to authorize benefits for such dogs.” 

Requirement of Certification by Members of Foreign-Controlled Organizations  

Numerous commenters had criticized the VA’s outsourcing of service dog qualification to the International Guide Dog Federation (IGDF) and Assistance Dogs International (ADI) but the VA is holding fast to this approach. 

“There are no Federal standards for service dog training that we can apply, and VA does not have the expertise to design its own accreditation program or standards.  ADI and IGDF are national, industry-recognized organizations with established and proven training criteria.” 

The word “national” is not correct, unless it is meant to indicate that these organizations operate in the United States.  IGDF is headquartered in England, its director is Canadian, and only one of its seven directors is located in the U.S.  ADI gives contact information for a Santa Rosa address, but its president, vice-president, and four of its seven board members are not in the U.S. 

The VA notes that, for other accreditation purposes, it relies on a number of organizations, including (1) Centers for Medicare and Medicaid Services, (2) the National Fire Protection Association, and (3) State licensing organizations for health care professionals.  This is undoubtedly true, but all of these instances of accreditation outsourcing involve organizations based in the United States.  With IGDF and ADI, the VA is allowing policy decisions to be made overseas. 

Effect of Limiting Dogs to ADI and IGDF Organizations

The VA acknowledges that “not all States have registered ADI-accredited or IGDF-accredited organizations, but argues that its final rules “provide for the reimbursement of travel expenses associated with the training a veteran must complete as offered by an ADI-accredited or IGDF-accredited organization.”  Because the VA will pick up the travel expenses, “we do not believe the absence of ADI-accredited or IGDF-accredited organizations in a particular State will serve as a barrier to obtaining a service dog.”

Traveling to obtain a dog is a severe problem for active duty military personnel, who are not (yet) veterans covered by the VA’s rules, but who must now operate under rules that the Army has adopted that use the same organizational approach as used by the VA.  That is not the VA’s problem, however.

Full Membership in ADI and IGDF Required

In commenting on the VA proposal in August 2011, I had asked: “Are candidate organizations of the umbrella groups to be authorized to certify service dogs for veterans, given that their candidacies may not ultimately result in full membership?”  To me or someone who asked the same thing, the VA states:

“We clarify for one commenter that VA only intends to recognize those service dog organizations that have full membership in ADI or IGDF, or that are fully ADI or IGDF accredited, versus those organizations in the process of becoming ADI or IGDF accredited.” 

This substantially cuts the potential supply of service dogs, since there are many organizations in candidate status with ADI.  The VA also noted that commenters had argued for “owner training,” but the agency declined to fund dogs trained in this manner, or trained in any manner by an organization not a full member of ADI or IGDF. 

The VA specifies that it “will not formally refer veterans to specific ADI-accredited or IGDF-accredited organizations, or initiate a process whereby a veteran may consent to have the VA act as an intermediary between the veteran and the service dog organization.”  Clinical staff will be able to give patients website information where they may find the nearest ADI- or IGDF-accredited organization, but the VA clearly wants to keep its distance from the process of actually getting the veteran a dog.  One senses a certain concern about liability here.  If the veteran provides a poorly functioning dog, the VA can insist that it only made a recommendation, not that it approved a specific organization or a specific dog. 

Service Dog Must Be an Optimal Device

Many commenters were surprised that the VA anticipated funding only about 100 dogs per year to veterans.  How that number was calculated will be discussed below, but the way that the VA may assure not having to fund more is the principle that it incorporates into the rule that a service dog must be “the ‘optimal’ device for the veteran to manage his or her impairment and live independently.”  The VA elaborates:  “[S]ervice dog benefits will not be provided if other assistive means or devices would provide the same level of independence as a service dog.” 

The VA acknowledges that “an eligible veteran may be prescribed both a service dog and another assistive device, as long as each provides a distinct type of assistance, or if, without each of the devices, the veteran would be unable to complete tasks independently.”  Thus, a veteran might be prescribed both a balance cane and a service dog, where the balance cane is optimal for walking, but the service dog is the best way to “regain a standing position and stabilize after a fall.” 

The VA states its reason for treating service dogs as secondary to other assistive devices:

“A service dog is a long term commitment that requires tremendous dedication and effort on the part of the veteran, as well as significant costs—only part of which would be paid for by VA…. A service dog must be fed, exercised, groomed, nursed when ill, and integrated into the veteran’s family as a necessary partner in the veteran’s daily life. If the extent of the veteran’s mobility impairment is such that the only tasks requiring assistance are picking up or reaching items, then a device that is not a service dog that fully accomplishes these tasks is not only sufficient, but also is not unduly burdensome for the veteran.”

Thus, if a cane works as well as a dog, the cane will be prescribed, the dog will not.  The fact that the dog adds emotional support to physical support will not be taken into account.  “Congress authorized VA to provide service dogs to veterans with disabilities as a means of mitigating the effects of a disability—and not for the purpose of companionship or emotional support.”  The VA also says that cost will not enter into its decision as to what devices to supply to a veteran. 

Expanding the example of the last paragraph, it is also apparent that if the dog is not optimal, not only will the cane be prescribed, but any mental illness that the veteran has on top of the mobility impairment will be treated by means other than a dog.  So if the soldier could use a dog just as well as a cane, and would not have to take as many psychotropic medications if he had a dog, the dog will still not be prescribed because it is not optimal for the mobility impairment.  As stated previously, the “service dog benefits will not be provided if other assistive means or devices would provide the same level of independence as a service dog.”  

Would a VA treatment team be able to argue that a service dog provides greater independence because the psychotropic medications have side effects that reduce the patient’s ability to function independently?  Perhaps, but this would seem to stretch the wording of the release well beyond what the reg writers intended. 

Who Determines What is Optimal?

The proposed rules specified that a VA clinician using medical judgment was to determine if a service dog was optimal.  The VA agreed with commenters who suggested that other professionals might appropriately be involved, including prosthetic staff and rehabilitative therapy staff who are members of an interdisciplinary team.  The VA clinical team will thus include “the veteran’s primary healthcare provider, and any other relevant specialty care providers and professional staff, to include prosthetic, and rehabilitative therapy staff.” 

What VA Will Pay For

The final rules follow the concept of the proposed rules in specifying that the VA will not buy service dogs for veterans.  Of course many organizations do not sell service dogs to end-users because they want to retain the ability to take the dog back if it is not being properly cared for or not being used for its intended service.  In any case, the VA is correct that “a majority of service dogs are acquired by veterans with little or no out of pocket cost.” 

The VA will pay for “repairing and or replacing harnesses or other hardware, providing annual and emergent veterinary care, providing prescription medications, or paying for other services when prescribed by a veterinarian.” 

The VA will not pay for grooming, nail trimming, non-sedated teeth cleaning, nonprescription medications, and nonprescription food and dietary supplements.  The VA will also not pay for standard nonspecialized leashes and collars and dog licenses.

Benefits will generally not be provided for more than one service dog at a time.  Thus, the VA will not pay expenses for a service dog that has been retired.  The final rule adds a provision that is a limited exception to the one-dog rule:

“VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving other benefits under this section for the service dog that the veteran needs to replace.”

Service Dogs Obtained before October 2012

The VA states that “we accept a certificate from a non-ADI or non-IGDF organization that existed before the effective date of the final rule as proof that the veteran’s service dog has successfully completed an adequate training program, and that a veteran who otherwise meets the criteria in the rule may receive applicable benefits.”  The VA says that it is essentially grandfathering service dogs acquired before the effective date of the final rule by not requiring these dogs to have ADI or IGDF certification. 

There appears to be a logical inconsistency here.  An organization that is a candidate member of IGDF or ADI cannot certify a dog either before or after the effective date of the final rules, i.e., October 5, 2012.  An organization that never applied for ADI membership can do so up to that date.  

The preamble adds one curious sentence:

“In response to commenters’ concerns that ADI-accredited organizations will not certify service dogs that were not also initially trained there, VA will ensure through continued workings with ADI-accredited and IGDF-accredited organizations that there exists a mechanism to provide such certification.” 

What “continued workings?”  In a 2010 audit of the VA’s Service Dog Program (10-01714-188), the VA Inspector General mentions that the VA signed a Memorandum of Understanding with Assistance Dogs International “to gain their assistance in preparing educational materials for providers and veterans.”  This MOU would not seem to cover the continued workings discussed here.  In any case, the VA apparently anticipates the possibility of having to pressure an accredited organization to work with a veteran who has a dog but no certification from a non-accredited organization.  Presumably ADI will have to contact member organizations and inform them of the advisability of cooperating with the VA on providing a certification for a previously trained dog.  It will be very interesting to see how all this works in practice, and I encourage anyone who gets into this situation to publish or post their experience.

In the few hours since this blog was first posted, I have been advised that at least one ADI member organization believes it will not be able to provide any certification for dogs it has not trained because its insurance policy would not cover such an activity.  Insurers in this business are likely to follow suit in interpreting policy provisions. It will be interesting to see if the VA comes up with a Plan B.  The easiest solution for many organizations will simply be to deny any applicant seeking a secondary certification, regardless of the quality of the dog and despite the language in the release.  

Service Dog Insurance Policies

The VA says that it “has researched the commercial market and anticipates that VA will be able to contract” that will mean that veterans will not have to pay any out of pocket costs for covered veterinary care and treatment costs.”  Because of concerns expressed by commenters, the final rule bars the billing of veterans for covered costs.  The VA says it “will consult with ADI, IGDF, and the American Veterinary Medical Association to ensure that the most comprehensive policy, specific to the needs of service dogs, is chosen.”    

Presumably, despite the foreign control of two out of three of the organization with which the agency will consult, the insurer will be U.S. based. Presumably also, due diligence should assure that the insurer has no direct or indirect connection with the designated umbrella organizations or members of those organizations.  

Number of Dogs VA Expects to Fund

The 2011 proposed rules estimated that 100 new service dogs would be provided to veterans annually.  Commenters objected that this was too low an estimate.  The preamble says that “100 is not an estimate of the number of veterans who may need a service dog.”  Rather, the number “was based on the number of veterans who sought to receive new guide dog benefits in fiscal year 2010 … which was 66, plus an additional number of veterans we estimated who would seek to receive new … service dog benefits for hearing and mobility impairments.”  Thus, the VA estimated that only 34 hearing and mobility impairment dogs would be needed to satisfy the demand created by VA system recommendations for such dogs as an “optimal device.” 

This highly questionable arithmetic will produce a very small number of dogs needed and one wonders what will happen if more recommendations than are being budgeted for start to come in.  A Republican administration, perhaps even a Democratic administration, may not be terribly flexible about making an adjustment to a figure that appears to have been calculated through use of a dart board.  Nevertheless, the VA insists that it has “no financial motive to underreport the estimated number of respondents.” 


It is unfortunate that the VA has chosen to ignore those veterans who have obtained service dogs for mental disabilities, but it is my opinion that this is not at present a litigable issue.  The VA is awaiting research results and has closed the door only for the present. 

The fact that the VA does not see its rules as defining service dog access would be a great relief to many veterans were it not that the Honoring America’s Veterans Act seems to include contrary language.  Also, the Army has been adopting access policies based on the same sort of foreign outsourcing approach that appears to have been blessed by Congress in the Act, so no one with a non-ADI or –IGDF service dog should rest easy until a final rule gives them access rights. 

The VA’s determination to give control of service dog qualification to two foreign-controlled organizations is tantamount to providing government contracts to a very limited number of bidders, and may have a significant impact on the economics of the service dog industry.  This is something that has happened in military contracts for working dogs, which I discussed in a blog two years ago.  There is a major difference, however.  With contract working dogs for military operations, the Department of Defense is paying for the services provided by the contractors, including the use of dogs over their useful lives, and due diligence is required for the spending of federal tax dollars on such contracts.  Awards are subject to review and can be overturned by the Government Accountability Office or by the courts, as happened with multi-million dollar contract I described in that blog. 

With service dogs, the veterans may have to pay for the dogs themselves and if a veteran can find a dog with the necessary skills by going to an individual trainer or small business that trains service dogs at a lower cost than an established charity, he or she should not be precluded from using such a resource.  By excluding funding for dogs trained outside of approved channels, the VA is essentially supporting a segment of the industry based not on the quality of its product but rather on the source of its product. The VA was able to do this without holding a public hearing on its proposed rulemaking, or by giving any consideration to approaches used by other federal agencies, including the Departments of Justice, Transportation, and Housing and Urban Development, all of which developed the sort of expertise the VA and the Army seem to find unattainable.  By insisting that its lack of expertise with service dogs excuses it from developing its own criteria for evaluating them, the VA has just awarded a very large government contract without any due diligence whatsoever.   

The final rule is reproduced below.

Thanks to Joan Esnayra, Debbie Kandoll, Leigh Anne Novak, Hilary Phillips, and Dailyah Rudek for comments and corrections, though I must acknowledge that I have not always followed their sound advice. I am solely responsible for all errors in fact or judgment.   

38 CFR 17.148 Service Dogs

(a) Definitions. For the purposes of this section: Service dogs are guide or service dogs prescribed for a disabled veteran under this section.
(b) Clinical requirements. VA will provide benefits under this section to a veteran with a service dog only if:
(1) The veteran is diagnosed as having a visual, hearing, or substantial mobility impairment; and
(2) The VA clinical team that is treating the veteran for such impairment determines based upon medical judgment that it is optimal for the veteran to manage the impairment and live independently through the assistance of a trained service dog. Note: If other means (such as technological devices or rehabilitative therapy) will provide the same level of independence, then VA will not authorize benefits under this section.
(3) For the purposes of this section, substantial mobility impairment means a spinal cord injury or dysfunction or other chronic impairment thatsubstantially limits mobility. A chronic impairment that substantially limits mobility includes but is not limited to a traumatic brain injury that compromises a veteran’s ability to make appropriate decisions based on environmental cues (i.e., traffic lights or dangerous obstacles) or a seizure disorder that causes a veteran to become immobile during and after a seizure event.
(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:
(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.
(2) Dogs obtained before September 5, 2012 will be recognized if a guide or service dog training organization in existence before September 5, 2012 certifies that the veteran and dog, as a team, successfully completed, no later than September 5, 2013, a training program offered by that training organization. The veteran must provide to VA a certificate showing successful completion issued by the organization that provided such program. Alternatively, the veteran and dog will be recognized if they comply with paragraph (c)(1) of this section.
(d) Authorized benefits. Except as noted in paragraph (d)(3) of this section, VA will provide to a veteran enrolled under 38 U.S.C. 1705 only the following benefits for one service dog at any given time in accordance with this section:
(1) A commercially available insurance policy, to the extent commercially practicable, that meets the following minimum requirements:
(i) VA, and not the veteran, will be billed for any premiums, copayments, or deductibles associated with the policy; however, the veteran will be responsible for any cost of care that exceeds the maximum amount authorized by the policy for a particular procedure, course of treatment, or policy year. If a dog requires care that may exceed the policy’s limit, the insurer will, whenever reasonably possible under the circumstances, provide advance notice to the veteran.
(ii) The policy will guarantee coverage for all treatment (and associated prescription medications), subject to premiums, copayments, deductibles or annual caps, determined to be medically necessary, including euthanasia, by any veterinarian who meets the requirements of the insurer. The veteran will not be billed for these covered costs, and the insurer will directly reimburse the provider.
(iii) The policy will not exclude dogs with preexisting conditions that do not prevent the dog from being a service dog.
(2) Hardware, or repairs or replacements for hardware, that are clinically determined to be required by the dog to perform the tasks necessary to assist the veteran with his or her impairment. To obtain such devices, the veteran must contact the Prosthetic and Sensory Aids Service at his or her local VA medical facility and request the items needed.
(3) Payments for travel expenses associated with obtaining a dog under paragraph (c)(1) of this section. Travel costs will be provided only to a veteran who has been prescribed a service dog by a VA clinical team under paragraph (b) of this section. Payments will be made as if the veteran is an eligible beneficiary under 38 U.S.C. 111 and 38 CFR part 70, without regard to whether the veteran meets the eligibility criteria as set forth in 38 CFR part 70. Note: VA will provide payment for travel expenses related to obtaining a replacement service dog, even if the veteran is receiving other benefits under this section for the service dog that the veteran needs to replace.
(4) The veteran is responsible for procuring and paying for any items or expenses not authorized by this section. This means that VA will not pay for items such as license tags, nonprescription food, grooming, insurance for personal injury, nonsedated dental cleanings, nail trimming, boarding, pet-sitting or dog-walking services, over-the-counter medications, or other goods and services not covered by the policy. The dog is not the property of VA; VA will never assume responsibility for, or take possession of, any service dog.
(e) Dog must maintain ability to function as a service dog. To continue to receive benefits under this section, the service dog must maintain its ability to function as a service dog. If at any time VA learns from any source that the dog is medically unable to maintain that role, or VA makes a clinical determination that the veteran no longer requires the dog, VA will provide at least 30 days notice to the veteran before benefits will no longer be authorized.

Wednesday, September 5, 2012

“Will Duke jump in windows?”— Orchestrating Drug Dog’s Alert Caught on Dash Video

Utah Highway Patrol Trooper Brian Bairett stopped Sherida Felders for speeding on I-15 near Cedar City, Utah, on November 20, 2008.  She had two passengers in the car, Elijah Madyun, 17 years old, and Delarryon Hansend, 18 years old.  Felders gave Bairett her driver’s license and vehicle registration but did not have a copy of her insurance card.  

Bairett alleged that the three individuals in the car were nervous and that Felders would not maintain eye contact with him. He also observed an air freshener in the car.  (Some K-9 handlers call several air fresheners hanging from the rear-view mirror a “felony forest,” though a single freshener is not generally thought to raise suspicion.)  Bairett asked Felders the purpose of her trip.  He returned to his car with the documents but did not run any computer checks at that time. He wrote a speeding ticket.  All the events were being captured on Bairett’s dashboard video camera. 

Bairett returned to Felders’ vehicle and asked her to step out of it so he could explain the citation.  In a deposition, Bairett acknowledged that he did not routinely ask people to step out of their vehicles but he did so this time because because he had begun to suspect the people in the car were involved in criminal activity based on their nervousness, the air freshener, and the fact there was a Jesus license plate ring on the vehicle.  (Religious and divinity symbols are sometimes used by traffickers, and law enforcement training often involves mention of such symbols as a possible indicator of drug activity.)

Bairett explained the citation but did not give the license and vehicle registration back to Felders before asking a few more questions about her travel plans. After handing the documents back to Felders, he still continued questioning her, and alleged in his deposition that she repeatedly stretched, rubbed her face, covered her mouth, avoided eye contact, and moved away from him. He stated that he “was still just investigating to find out whether there was a crime,” but the court said that at this point Bairett had no articulable reasonable suspicion. 

Bairett then asked if he could talk to Felders’ passengers and she consented.  After doing so, Bairett returned to questioning Felders because of possible inconsistencies in what he had been told.  Felders had said the passengers were friends of her grandchildren, but the passengers said they were her cousins.  Felders had said her grandchildren were flying to Colorado but later said they lived there. Felders said she was returning on December 1st, but the passengers said they were returning on Sunday, which Bairett took to mean November 23rd, though it could have meant November 30th.  None of these statements were necessarily inconsistent, though December 1st was a Monday.

Felders began trying to explain the inconsistencies but Bairett said her story did not make sense.  He believed he had sufficient reasonable suspicion that Felders was transporting drugs and he asked her if she had cocaine in the vehicle.  She did not respond for seven seconds, then said “No.” (This, of course, could be explained if Felders was dumbstruck by what was being suggested and could not get her breath.)  Bairett asked about other types of drugs, and she said “No” to each.  Then he asked if he could search the car and she said he could not.  He informed her that he was detaining her until a K-9 unit arrived. 

Bairett called his sergeant and informed him of the situation.  He told the sergeant, “If I can’t get a dog, I’ll just have to let her go.”  He began to perform computer checks for the first time, considerably later than would usually be standard procedure, and found that Felders had a charge of receiving stolen property and battery on a police officer with a firearm.  No prior drug charges or convictions came up in the computer checks.  (Computer checks are sometimes delayed to prolong a stop, which may have been the case here.)  The prior charge could explain Felders’ nervousness, though the court did not mention this possibility. 

While Bairett was still waiting for the K-9 unit, Deputy Wade Lee arrived.  Bairett “rehearsed for that officer all that had occurred during the stop,” according to the court.  “Rehearsed” is a curious verb.  Why not “described?”  Did it appear to the court that Bairett was trying to line up his arguments for a search?  Bairett said to Lee:  “There’s so much—I’m to the point right now where it’s probable cause to get in that vehicle, whether she likes it or not.”  This is directly contrary to what Bairett had just told his supervisor, so it’s not clear whom he was bullshitting. Both officers told each other that when someone refuses consent, it is because “there’s something in there.” Lee said that “most people think it’s fun” to have their car searched, and Bairett agreed.  As to this interchange, the court observed:

“That two officers would opine to the contrary and believe that people actually enjoy being detained and having their vehicles and belongings searched makes the court question the training and judgment of these officers.”

Dispatch informed Bairett that Deputy Malcom would be coming with his drug dog, Duke.  Bairett asked Deputy Lee, who he may have thought knew Malcom better than he did, if Duke would jump in the vehicle through the windows, noting that “the windows are open.”  Bairett may have been asking Lee whether Malcom had trained his dog to jump through open windows, as demonstrated in the two training pictures included in a prior blog.  As we noted in that blog, jumping in windows is not “instinctual” with dogs.  When they do it automatically, it is because they have been trained to go through anything that looks like a car window (as many have) or because they are following a scent, not because they have an irresistible urge to go through narrow passages into dark spaces. 

Unfortunately, this poorly considered terminology has recently been adopted by the Sixth Circuit in U.S. v. Sharp, 2012 WL 3047338 (6th Cir. 2012) (“[A] trained canine’s sniff inside of a car after instinctively jumping into the car is not a search that violates the Fourth Amendment as long as the police did not encourage or facilitate the dog’s jump.")  The likely reason for Bairett’s question to Lee about whether Duke would jump through windows was Bairett’s hope that the dog had been well-trained to go through windows.  The fact that he made such an effort to keep the doors open, as will be described below, probably indicates that he was not satisfied that there had been this kind of training. 

Deputy Malcom arrived about 30 minutes after Bairett first called for a K-9 unit.  Malcom told Bairett to remove the two passengers from the vehicle.  Bairett replied, “Yeah, that’s what I was planning on doing.  When they get out of the car, I’ll leave the doors open.”  In his Incident Report, however, Bairett stated that the passengers left the doors open.  In his deposition, he said he did not leave the doors open.  The videotape, according to the court, showed “that as Mr. Madyun exited through the front passenger door, Trooper Bairett put his hand on the door and opened it wider. Dash Cam Video, 9:44:58-9:45:00.  Next, it shows that Trooper Bairett stepped towards the rear passenger door when it opened.  As Mr. Hansend exited, he moved to close the door. Trooper Bairett, however, put his hand on the door to stop it from being closed.  Dash Cam Video, 9:45:00."  At the very least, Bairett seems to have had memory problems. The court's analysis suggests that at some point he may have perjury problems. 

“Ms. Felders was then directed to remove her Chihuahua from the back of the vehicle [by which officer is not stated].  She lifted the back window hatch to do so and left that open.  Consequently, the back hatch and front and rear passenger doors were all open when Duke was deployed.” 

What happened with the deployment of Duke is described by the court as follows (deleting video time stamps and deposition and affidavit references):

“Duke first went to the back hatch, lifted his head up, and sniffed at the open window; but Deputy Malcom appeared then to pull on Duke's leash briefly to guide him away from the back of the vehicle. Deputy Malcom next backed towards the rear passenger door that was open, keeping Duke between him and the vehicle. Upon arriving at the passenger door, Duke jumped into the vehicle.”

What the video shows would be informative to handlers because forcing a dog to go forward—many dogs will not stop indefinitely and do not like to go backward against the position of the handler—may indicate the dog was blocked and that there was cueing at this stage of the sniff.  The court continues:

“The total time from deployment until Duke entered the vehicle was seven seconds. In those seven seconds, Duke spent about four seconds approaching the back hatch window and sniffing it. Deputy Malcom testified at his deposition that Duke did not alert during that time. In the next three seconds, however, Deputy Malcom attested that Duke did alert because Duke ‘began breathing quickly and deeply, which is how he acts when he alerts to a drug odor.’ Additionally, he jumped into the vehicle, and when he entered the vehicle that constituted part of his alert.”

Malcom provided the court with an affidavit from an expert witness, Wendell Nope, the K-9 Training Supervisor at the Peace Officer Standards and Training Division of the Utah Department of Public Safety.  Nope’s affidavit stated that he had reviewed the dash cam video and stated that Duke “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.” 

Describing lifting the head, breathing deeply, and entering vehicle as an alert would not be acceptable in any reputable training regimen with which the authors are familiar. Duke’s first entry lasted about two minutes.  Malcom removed him from the vehicle but allowed him to re-enter it two more times.  According to the court:

“After searching the vehicle for approximately five minutes, Duke indicated by sitting and focusing intently by the driver's side door. The three officers then spent almost an hour searching the vehicle and its contents, including removing paneling to search behind it. They found no illegal drugs or other contraband; and therefore, had to end the plaintiffs' detention. The entire stop lasted approximately two hours.”


Felders and her passengers sued, advancing three causes of action: unlawful seizure under the Fourth Amendment, unlawful search under the Fourth Amendment, and unlawful racial profiling under the Equal Protection Clause of the Fourteenth Amendment.

Court’s Analysis

The federal district court for Utah held that the initial traffic stop for speeding was appropriate, but the air freshener, Jesus license plate ring, and nervousness “fall short of reasonable suspicion of criminal activity.”  When Felders declined to allow Bairett to search the vehicle, the encounter was no longer consensual and Bairett needed reasonable suspicion to prolong the detention. 

Analyzing Bairett's argument that he had reasonable suspicion, the court said that Bairett had found the following suspicious: (1) the air freshener, (2) Felders’ nervousness, (3) inconsistent answers of the occupants of the car concerning travel plans, and (4) the delay in Felders’ response to the question about whether she was carrying cocaine.  There were weaknesses in several of these items as grounds for reasonable suspicion.  Under Tenth Circuit precedent, “nervousness is a common and natural reaction to an interaction with a police officer,” so “unless an individual’s display of nervousness is unusually severe or persistent, or accompanied by other, more probative grounds for reasonable suspicion, it is of limited significance in determining whether reasonable suspicion exists.”  U.S. v. Kitchell, 653 F.3d 1206 (10th Cir. 2011).  Based on the dash cam video, the court concluded that it did “not appear that Ms. Felders’ nervousness was unusually severe or persistent.”

Some of the inconsistencies in stated relationships and travel plans, according to the court, “may have arisen due to cultural differences and miscommunication between the parties,” but it could not be stated for certain that this explained everything. 

Viewing the totality of the circumstances, the court concluded that Bairett had reasonable suspicion sufficient to continue the detention and that the seizure was not in violation of the Fourth Amendment. 

Duke’s Sniff of the Vehicle

The court moved on to the question of the legality of the search. Probable cause is not needed to conduct a canine sniff of a vehicle’s exterior.  Under Tenth Circuit precedent, however, officers may not “rely on a dog’s alert if they open part of the vehicle so the dog can enter or if they encourage the dog to enter.”  U.S. v. Ayala, 446 Fed.Appx. 78 (10th Cir. 2011).  The court found that “Trooper Bairett showed an express intent to facilitate Duke’s entry into the vehicle.”  Bairett argued that he could not have facilitated the dog’s entry into the Jeep because he was not the dog handler, but the court noted that facilitation “can occur by means other than directly handling the dog.”  For this, the court cited U.S. v. Winningham, 140 F.3d 1328 (10th Cir. 1998), where a motion to suppress was granted when a New Mexico Border Patrol agent left a car door open while he was searching for illegal aliens. A drug dog did not clearly alert outside the van, though the handler said he had observed a noticeable difference in the dog’s behavior near the van.  The dog jumped inside the van, where it alerted at a rear vent. Inside the vent, the agents found 50 kilograms of marijuana.

The court determined that Trooper Bairett was not entitled to qualified immunity on the plaintiffs’ claim of improper search:

“Indeed, from the dash cam video, it is evident that Trooper Bairett intentionally facilitated Duke's entry into the vehicle and no reasonable fact finder could conclude otherwise. Thus, if probable cause was not established before Duke entered the vehicle, Trooper Bairett violated the plaintiffs' constitutional right to be free from unreasonable search. As discussed below, a material issue of fact exists as to whether Duke alerted before entering the vehicle. Whether Trooper Bairett violated the plaintiffs' constitutional right cannot therefore be resolved on summary judgment.”

Given the language we’ve italicized, Bairett’s counsel may want to consider making a settlement offer soon.

Vertical Collective Knowledge

Deputy Malcom argued that he had authority to search the interior of the vehicle because Trooper Bairett had told him, “to me, I’ve got probable cause to search the vehicle without her permission or not.”  Malcom argued that he could rely on this under the collective knowledge doctrine, but the court noted that under the doctrine “the second officer is justified only to the extent the first officer actually had the probable cause or reasonable suspicion asserted.”  The court said that Bairett may have had reasonable suspicion, but “it did not rise to the level of establishing a fair probability that the vehicle contained contraband,” and Bairett “did not have probable cause to search the vehicle.” 

Bairett’s supervisor had not indicated to Bairett that there was probable cause, though he wrote in his report that if Bairett felt he had enough suspicion, he could wait for a drug dog to perform a sniff.  Therefore, there was no vertical collective knowledge upwards either.  The court said that the vertical collective knowledge doctrine did not apply.

Did Handler Observe Enough on His Own to Have Probable Cause?

The federal district court considered whether Deputy Malcom’s own observations gave him enough information to have probable cause to search the vehicle.  Malcom did notice some indicators that Bairett had not:

“[A] single key was in the ignition rather than a key ring with several keys, they were traveling with a dog which is often believed by drug runners to mask the scent of drug odors, the time that they were traveling began [at] midnight, air freshener by the center console, inconsistent travel plans of passengers, a Jesus license plate bracket, relationship of children, body language, and lying to an officer or story not rehearsed.”

The court questioned how Malcom could have known about the single key before Duke entered the vehicle because Bairett had never mentioned it.  The dash cam video suggested that Malcom could have only known this after Duke entered the vehicle.  The court also stated that the information about midnight travel was not communicated to Malcom prior to his dog entering the vehicle.  The court acknowledged that Malcom could have known about the presence of the Chihuahua before Duke entered the vehicle, but that this “did not alter the court’s conclusion.” 

Nor was Malcom immunized from the unlawful search claim by good faith reliance on what Bairett had told him because Bairett had explained the facts upon which he believed there was probable cause and “Deputy Malcom was in a position to judge for himself whether there was probable cause to search the vehicle.” 

Facilitating Dog’s Entry into Vehicle

Bairett had told Malcom that he would get the passengers out of the car and that when he did so, “I’ll leave the doors open.”  Malcom did not respond and stated in his affidavit that due to traffic noise he did not hear Bairett’s comment or observe Bairett opening the doors.  The court said that there was an issue of fact here for the jury to determine and summary judgment could not be granted.

Malcom also argued that Duke’s entry into the vehicle was proper because he alerted before entering the vehicle.  The court summarized a prior case where a dog’s behavior had changed outside a vehicle and the dog had tried to jump into the vehicle, but was stopped by the handler.  In U.S. v. Parada, 577 F.3d 1275 (10th Cir. 2009), the officer “testified that the dog’s body stiffened and his breathing became deeper and more rapid, signaling that he had discovered an odor he was trained to detect.”  Because the officer prevented the dog’s entry into the vehicle, the dog never indicated or pinpointed the source of the odor.”  The Tenth Circuit held that this was enough to provide probable cause to search the vehicle. 

Here, the court said that although Malcom contended that Duke “began breathing quickly and deeply” before jumping in the vehicle, which was part of the alert, “the dash cam video creates a material issue of fact as to whether Duke actually alerted before entering the vehicle. The manner in which Deputy Malcom handled Duke and the three seconds, a very short period of time, between deployment and entry do not readily confirm that an alert occurred.” 

Wendell Nope, the defense expert, submitted an affidavit stating the Duke had “alerted when he lifted his head up, began breathing deeply, and jumped into the rear passenger door of the Jeep.”  The court observed that the dash cam video only shows Duke lifting his head up “when he sniffed at the rear window of the vehicle.”  At this point, Malcom said that Duke had not yet alerted.  The opinion continues:

“Because Deputy Malcom has more experience with this particular dog than Mr. Nope, it is unclear why Mr. Nope believes this constituted an alert. To the extent Duke raised his head at some other point, it would be best for Mr. Nope to point out that nuance to a jury. Ultimately, however, Mr. Nope can be considered only an expert in proper procedures for training and handling drug dogs. He is not an expert in perceiving facts, nor an expert on how this particular dog reacts. If Mr. Nope was able to hear Duke breathing deeply on the video, then so too should the jury. Unfortunately, that sound is not evident on the video supplied to the court, so it cannot resolve this disputed issue.”

More reason to settle: your expert has lost credibility with the court. The court also stated that “Deputy Malcom and Mr. Nope are put on notice … that they will not be permitted to testify that a dog’s jump into a vehicle constitutes an alert.  Probable cause must be established before entry, not by an entry.”

Duke inside the Vehicle

Although the violation of rights involved Duke’s entry into the vehicle, a footnote mentions that while Duke was focusing on the center console, Malcom removed some beef jerky that was near the console “to make sure that wasn’t what he was hitting on….”  In his affidavit, Malcom said that he removed the beef jerky “to prevent Duke from putting his nose in the Plaintiff’s food and spoiling it.  I did not think or believe that Duke would ‘alert’ to beef jerky.  In fact he is trained not to give an alert or indication to any type of food.”  The court noted that the affidavit statement “changes the motivation for why Deputy Malcom acted,” and meant that “a fact finder may question the credibility of Deputy Malcom’s two affidavits.” 


Nope’s affidavit stated that Malcom had handled Duke in conformance with established standards, keeping the leash slack so as not to cue Duke improperly.  The court noted that “cueing may occur by means other than a taut leash.  Because the dash cam video shows Deputy Malcom pulling Duke away from the rear window and keeping him in a close space between him and the vehicle as he backed towards the passenger door, a material issue of fact exists regarding whether improper cuing occurred.”

Another footnote mentions that the plaintiffs also had an expert whose report addressed Malcom’s handling of Duke and concluded that Duke had been handled improperly. The court did not name the witness, make a decision on whether this witness could be qualified as an expert, or otherwise refer to the conclusions of the expert’s report or a deposition that was apparently conducted of this potential witness. 


The federal district court concluded that “existing precedent was sufficient to put Trooper Bairett and Deputy Malcom on notice that facilitating a drug dog’s entry into a vehicle can constitute an illegal search.”  The court is specific about Bairett intentionally orchestrating the drug dog’s entry into the vehicle and thus its intrusion into the privacy of Felders, but states that “Malcom may have participated as well.”  Therefore, the court denied qualified immunity to Bairett and Malcom. 

The court rejected the racial profiling claims because the plaintiffs failed to present clear evidence to rebut the presumption that Bairett did not violate their Equal Protection rights.  Felders alleged that Bairett had mocked her African-American accent.  The court agreed the dash cam video showed that Bairett used a mocking tone towards Felders, but said he could have been exaggerating and imitating a woman’s voice.  Either way, it is apparent that Bairett could use some sensitivity training, as well as some instruction in the legal significance of reasonable suspicion and probable cause. Usually one expects the driver to forget there is a dash cam video, or not even realize it is there, but here it appears to have been the officer who forgot. 

Felders v. Bairett, 885 F.Supp.2d 1191 (2012)

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