Tuesday, August 27, 2013

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

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

Patient Denied Access for Mobility Impairment Dog in Psychiatric Ward

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

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

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

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

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

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

Service Animal Policy of El Camino Hospital

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

Tamara Seeks Preliminary Injunction

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

To receive a preliminary injunction, Judge Whyte (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)) said that Tamara had to establish four things:
  1. She is likely to succeed on the merits.
  2. She is likely to suffer irreparable harm in the absence of preliminary relief.
  3. The balance of equities tips in her favor.
  4. The injunction is in the public interest.
The judge considered each item in turn, but spent most of his attention on the first item. 

Likelihood of Success on Merits

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

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

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

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

1988 Memorandum of the Department of Justice

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

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

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

Service Animals in Dialysis Facilities

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

Milieu Therapy

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

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

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

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

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

Individualized Assessment

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

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

Dangerous Harness

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

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

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

Inglis’s Training

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

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

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

Irreparable Harm, Balance of Hardships, and Public Interest

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

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

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

Issues for the Hearing

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

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


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

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

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

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

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

Date: July 12, 2010

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

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

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

I. Background

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

II. Brief Answer

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

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

III. Legal Analysis

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

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

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

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

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

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

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

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

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

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

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

i. The "Fundamental Alteration" Provision

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

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

ii. The "Safety" Provision

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

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

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

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

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

iii. The "Direct Threat" Defense

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

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

(1) the animal's presence creates a risk to the health or safety of patients, staff, and/or visitors;
(2) the hospital can prove with clear evidence that the risk is significant; and
(3) the direct threat cannot be eliminated by modifying the hospital's policies, practices, or procedures. [fn: Id.]

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

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

D. Conclusion

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

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


Mark B. Childress, Acting General Counsel

Delores "Dee" Thompson, Chief Counsel

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

Tuesday, August 20, 2013

Conviction Overturned for Excessive Redaction of Training Records and Performance Reviews: Vehicle Sniffs in a Post-Harris-Jardines World

In an opinion issued early this month, Ninth Circuit Judge Diarmuid F. O’Scannlain said that the case required the court “to explore emerging parameters for the constitutional use of drug-detection dogs.”  What is emerging is how courts will be interpreting Harris and Jardines, the two Supreme Court cases concerning narcotics-detection dogs decided last spring.   The Ninth Circuit clearly wants law enforcement to understand that Harris does not mean that courts will be rubber stamping drug dog reliability by accepting mere assertions of certification and adequate training. 

Stop at Border Patrol Checkpoint

On February 28, 2010, Jonathan Thomas approached a Customs and Border Patrol checkpoint in southern Arizona.  (As a winter resident of Arizona, I can attest that such checkpoints are a way of life whenever one drives anywhere within 50 miles of the Mexican border.)  Border Patrol Agent Christopher LeBlanc was on duty with his drug-detection dog, Beny-A, who, in addition to drugs, was trained to detect concealed humans.  LeBlanc and Beny-A were about 15 feet from the inspection area when Thomas’s truck passed them and the dog began to demonstrate what Thomas referred to as “alert behavior.”  This meant that the “dog’s tail and ears went up, his posture and breathing pattern changed, and he started ‘air-scenting.’”

Thomas was directed to a secondary inspection point where he and his three children exited the truck.  LeBlanc and Beny-A began a pass of the truck.  According to the opinion:

“The dog was ‘in odor’ throughout, meaning he was very animated and excited. Near the gas tank on the passenger side the dog exhibited more alert behavior. Beny–A is trained to perform what is known in the trade as an 'indication' when he discovers contraband: he ‘rock[s] back into a sit.’

“When the team came upon the toolbox, LeBlanc cast his hand low-to-high. In response, Beny–A jumped up and placed his paws on the vehicle and pressed his nose against Thomas's toolbox. LeBlanc testified that the dog then tried to sit, but that he did not allow him to complete that trained indication. Next, LeBlanc returned Beny–A to his kennel, obtained Thomas's keys, and searched the locked toolbox. Inside was a blanket and, underneath, bundles of marijuana weighing about 150 pounds. Thomas was arrested, advised of his Miranda rights, and transported to the Tucson Border Patrol station.”

We have discussed the risks associated with using hand motions to bring a dog’s attention to objects that might be sniffed, including pictures of how this can cue a dog.  See How to Prevent Cueing Arguments from Getting Canine Evidence Thrown Out in Court, Deputy and Court Officer, 3(2), 36-38 (2011).  Probable cause would be more clearly established if a dog is allowed to complete the alert. There can be reasons for stopping a dog from completing an indication, such as a physical barrier, an ailment in a dog’s leg, etc., but the defense should always carefully examine such claims.
Thomas was indicted for possession of marijuana with intent to distribute (21 U.S.C. 841(a)(1), (b)(1)(C)).  A superseding indictment 14 months later added a charge of conspiracy to possess marijuana with intent to distribute (21 U.S.C. 846).  Thomas moved to have the indictment dismissed on the ground that the Speedy Trial Act 70-day rule (18 U.S.C. 3161(c)(1)) had been violated. 

Thomas also argued for suppression based on the search of the toolbox.  He claimed that this search violated the Fourth Amendment because the drug dog’s failure to indicate meant probable cause had not been established.  He also objected to receiving heavily redacted training and performance evaluation records concerning Beny-A and his handler.  The district court judge ruled that the government’s limited disclosures satisfied its discovery obligations and denied the motion to suppress.  After a two-day trial, Thomas was found guilty of conspiracy and the court sentenced him to 30 months of incarceration. 

Appeal to the Ninth Circuit

The circuit court rejected the Speedy Trial Act argument, then proceeded to Thomas’s Fourth Amendment argument.  The court said that this involved three separate assertions:
  1. Agents invaded a constitutionally protected area by directing the drug dog to jump “up and put his paws and nose on the toolbox in the truck bed, and stay … like that, refusing to move.” 
  2. The government failed to disclose adequate evidence of the proficiency of Beny-A and his handler to justify the search of the toolbox.
  3. Beny-A’s failure to indicate by sitting meant that the agents lacked probable cause for the search.
The government responded that Beny-A’s contact with the truck was not a Fourth Amendment search.  The second argument, however, proved key. 

Truck Bed and Toolbox as Areas Constitutionally Protected

The argument concerning constitutionally protected areas is based on U.S. v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 191 (2012), and Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 945 (2013).  Jones held that installation of a GPS-tracking device to the exterior of a car was a search subject to the Fourth Amendment’s requirement of reasonableness. The Ninth Circuit described Jardines as having “held that the use of ‘a trained police dog to explore the area around the home in hopes of discovering incriminating evidence’ implicated the Jones principle.”  The court was unwilling to issue a specific rule concerning the significance of Jardines to a vehicle situation, saying only:

“[I]t is conceivable that by directing the drug dog to touch the truck and toolbox in order to gather sensory information about what was inside, the border patrol agent committed an unconstitutional trespass or physical intrusion.”

The court noted that not every constitutional violation leads to the application of an exclusionary rule.  Police, for instance, may reasonably rely on binding precedent.  Davis v. U.S., 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).  The Supreme Court, in Illinois v. Caballes, 543 U.S. 405, had held that “the use of a well-trained narcotics-detection dog” on a motor vehicle did “not rise to the level of a constitutionally cognizable infringement.”  Indianapolis v. Edmond, 531 U.S. 121, had said that an exterior sniff of an automobile is permissible in part because it “does not require entry into the car.”  The Ninth Circuit also referred to Justice O’Connor’s oft-repeated description, in U.S. v. Place, 462 U.S. 696, of the dog sniff as sui generis, and her conclusion that using such a dog to sniff luggage was not “a search requiring probable cause.” 

Because of these prior cases on which the border patrol agents could have relied in performing the sniff and opening of the toolbox, they “acted in accord with then-binding precedent” and, therefore, “the marijuana seized is not subject to exclusion on the basis of an unconstitutional trespass or physical intrusion.”  In effect, the Ninth Circuit left the question of whether such a sniff might involve a constitutionally protected area for a case in which the stop occurred after Jardines was handed down.

Reliability of Drug Dog

Thomas also challenged Beny-A’s reliability, arguing that it was improper for the government to supply him with only heavily redacted records concerning the training and experience in narcotics detection of the dog and the handler.  The Ninth Circuit summarized the records that were produced:

“Such records show that LeBlanc and Beny–A had attended yearly certification programs from the Border Patrol and were up-to-date at the time of the search. Biweekly logs, called green sheets, were also produced. The team's performance during eight-hour-controlled evaluations was scored on a scale of one to six—the higher the score, the worse the performance. At least one record analyzed at the suppression hearing revealed marginal performance in ‘search skills.’ The team received a 3.50. Had it been one-tenth of a point higher it would have been ‘a failing score.’ The redactions obscure comments on nearly every page of the records. As to what is beneath the blacked-out paragraphs, the defendant, district judge, this court, and even the Border Patrol's custodian of records are entirely in the dark.”

The court noted that it had dealt with discovery of police canine records ten years earlier.  In U.S. v. Cedano-Arellano, 332 F.3d 568 (9th Cir. 2003), it had held, in response to a discovery request in a motion to suppress, that the government had to supply the defendant with the handler’s log, training records and score sheets, certification records, and training standards and manuals pertaining to the dog.  This, according to the 2003 decision, was important for the defendant to prepare “effective cross-examination of the dog’s handler.”  Further, under U.S. v. Cortez-Rocha, 394 F.3d 1115 (9th Cir. 2005), these disclosures are mandatory if the government seeks to rely on a dog alert as the evidentiary basis for a search.

The Ninth Circuit saw the Supreme Court’s decision in Harris, 133 S.Ct. 1050 (2013), as echoing its own perspective in that Justice Kagan stated that a defendant must be afforded the opportunity to challenge “evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witness.”  The court quoted Justice Kagan’s examples of how a defendant could attack a dog’s reliability:

“The defendant, for example, may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty. So too, the defendant may examine how the dog (or handler) performed in the assessments made in those settings.”

The Ninth Circuit therefore saw these remarks as non-exclusive examples.  Even if there was some sensitivity that justified redacting the records, the Ninth Circuit noted that this could have been dealt with by an in-camera review.  There may in fact be good reasons for some redaction of records, though mostly field records, such as the need to protect the privacy of individuals involved in an investigation or to keep specific deployment protocols confidential, but these reasons can be described and discussed in chambers.

The government also argued that even if there was a violation of Thomas’s rights, the error was harmless. Because no court had access to the complete records, the Ninth Circuit concluded that it could not be said that the records would not have changed the ultimate determination that the agents had probable cause to support the search.  Therefore, the harmless-error argument failed. 

Lack of Formal Alert

Thomas also argued that because Beny-A “never completed his trained indication—the sitting discussed earlier—his behavior was an insufficient basis for searching the toolbox.”  The court accepted the analysis of the Tenth Circuit in U.S. v. Parada, 577 F.3d 1275 (10th Cir. 2009), which had held that a dog did not have “to give a final indication before probable cause is established.”  In that case “rapid deep breathing, body stiffening, and upbreaking from the search pattern” were sufficient.   The Ninth Circuit stated that “[e]vidence from a trained and reliable handler about alert behavior he recognized in his dog can be the basis for probable cause.” 


The Ninth Circuit reversed, holding that “the government’s failure to turn over a full complement of dog-history discovery was an error that was not harmless….”  On remand, the government would have the chance to establish the dog’s reliability by producing an adequate record.  If the government could establish consent to the search, that would allow reinstating conviction.  “If not, a new trial without the evidence of the marijuana will be appropriate.”  We all know that is not going to happen, so the government’s best shot appears to be to turn over all the dog’s records and ask for an in-camera review if some of the material really is sensitive. 

The case is an important extension of Harris, as it says that the government cannot turn over redacted training records in discovery and expect the defense and a trial judge to accept without argument that what it is given must be taken as adequate.  

There have already been at least a dozen cases interpreting various issues left open in Harris and Jardines.  We will soon be examining the impact of these cases on police and prosecutorial practice in a law review article we are preparing on what Judge O’Scannlain aptly calls the “emerging parameters for the constitutional use of drug-detection dogs.”   

U.S. v. Thomas, No. 11-10451, 2013 WL 4017239 (9th Cir. 2013).

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

Monday, August 12, 2013

89-Year-Old Man Dies from Wounds Inflicted by Police Dog with History of Attacking Bystanders

A police dog bite case that ultimately resulted in the death of an 89-year-old man who was attacked in his own back yard is a lesson in what can go wrong when a dog is let loose beyond control of its handler.  The liability of the police handler is not particularly surprising, but the liability of other officers present is a cautionary tale about how mistakes of a handler can lead to liability for officers who are supporting the handler, or perhaps just do not stop him when they should realize that his actions are putting citizens at risk. It is also a warning to supervisors above police dog units who incorrectly assume that the officers in a unit can be left to train and work as they wish.   Finally, cities and other authorities that have doubts about their police dog programs should study this case from a federal district court in the Ninth Circuit, which shows that the liability for a poorly managed canine program can be substantial, and may ultimately have to be passed on to taxpayers if insurance coverage is inadequate or withdrawn after an incident.  

Robbery of Domino's Pizza

Officer Loring Cox of the Hayward Police Department and his police dog Nicky responded to an armed robbery of a Domino’s Pizza the night of May 29, 2011.  The victim informed police that the robber was armed with a handgun and headed north after leaving the restaurant.  Officer Cox and Nicky arrived first, followed by Officers Robert Purnell and Michael Miller, and the three officers began to following the dog, which was supposedly trailing a scent from the pizza shop.  A casting process may have been used for the dog to find the scent, since no articles are mentioned as being available for this purpose, but this aspect of the canine team’s work was not described in any detail. 

Nicky took a right turn off West Winton Avenue and “sprinted down a commercial driveway,” where he stopped at an 8-foot-high concrete wall at the rear of a business complex.  The wall separated the complex from a mobile home park.  Nicky pawed at the wall. 

Officer Cox stood on a wooden pallet to look over the wall and saw the back yards of several mobile homes.  He decided to lower Nicky into the yard on the other side of the wall.  According to the court, Cox “chose to send the dog over the wall before cover officers scaled the wall in order to protect the officers’ safety and preserve the integrity of the scent…. Cox did not announce his presence or the deployment of Nicky because the suspect had fled the scene and was thought to possess a handgun.” 

There were inconsistent statements from the officers with regard to what happened next.  Officer Cox said that he lowered Nicky to the ground by his leash, which was 33 feet long, a common length for a tracking lead. Purnell held one end of Nicky’s leash while Cox lowered the dog.  Cox said that Nicky remained lying on the ground until Cox jumped down into the back yard.  This would have been protocol, but Officer Purnell’s testimony was very different:

“Officer Purnell testified that Nicky was searching Mr. Porter's yard unsupervised, and that Cox was still standing on the wooden pallet, on the side of the wall closest to the business complex, when Cox announced that it sounded like Nicky had apprehended the suspect…. Purnell states that Cox did not go over the wall and enter Mr. Porter's backyard until after Cox announced the bite.”

Cox announcing that “it sounded like Nicky had apprehended the suspect” means that the dog had been allowed to roam freely in the back yard without being in the clear line of sight of any officer.  This would presumably be a violation of protocol. 

Jesse Porter, 89 years old, was in the back yard into which Nicky had been lowered.  Nicky was trained to bite and hold a suspect, and Nicky bit Porter’s leg, leaving a gaping hole in the calf muscle, exposing tendons and muscle.  Despite the severity of the injury, Officer Cox said that Porter did not make any noise or move in response to Nicky’s bite.  None of the officers at the scene recounted how long Nicky’s bite of Porter continued.  The court stated that it appeared that if Porter did not struggle, he was not likely bitten multiple times but that the amount of force in a single bite had to be “significant” as it “was sufficient to sever most of Mr. Porter’s calf muscle from his leg….”

The Hayward Fire Department and American Medical Response arrived to provide medical care to Porter and transported him to Eden Medical Center. Pictures of the wound from the Medical Center showed most of the calf muscle missing from Porter’s leg.  The leg became gangrenous and had to be amputated above the knee on June 10, 2011.  Porter went into a residential care facility, where he died on July 27, 2011. 

Porter’s children and estate sued the City of Hayward and the three officers involved, alleging violations of Porter’s constitutional rights and various state law claims.  The defendants moved for summary judgment. The following issues were before the court:
  • Whether Cox’s conduct was unreasonable under the circumstances (if not grossly negligent).
  • Whether the officers were entitled to immunity, and if so, as to which claims.
  • Whether the City of Hayward was liable for the allegedly unconstitutional and tortious conduct of its employees.
Testimony of K-9 Unit Supervisors

The defendant officers and City argued that the deposition testimony of Sergeant Raymond Sisson, Hayward’s K-9 Unit Supervisor, was inadmissible because it lacked foundation and personal knowledge and was irrelevant.  Sisson testified about whether he reviewed Nicky’s training records with Cox and had discussed best practices for using a police dog in a residential area.  He stated that he held weekly meetings with the officers of his unit to discuss training, incidents that have occurred, and how the unit could improve.  The court held that Sisson could appropriately testify about what the best practices of a K-9 unit should be, and that he had personal knowledge of his reviews of Nicky’s records.  Sisson also testified that common practice in a residential area is to have officers tell nearby residents to remain in their homes and bring their pets inside.  Holding this testimony to be relevant, the court overruled defendants’ objections to this witness. 

Lieutenant Brian Matthews, the K-9 unit supervisor, said in a deposition that in a residential area, K-9 handlers should keep their dogs in close proximity and in view at all times.  The court also held this testimony admissible.  It must be wondered if the officers were convinced that the robber had fled into or even lived in one of the mobile homes, meaning that an announcement to the residents would assure that the criminal would remain hidden while they searched the area. 

Testimony on Surveillance Footage

The defendants also objected to the testimony of Officer Craig Fovel, who had reviewed surveillance footage showing the direction in which the robbery suspects fled.  The defendants argued that Cox and Nicky tracked in the direction they did because they had seen the footage, perhaps a way of arguing that Nicky had not focused on any scent.  If so, then the argument may have been that Nicky attacked Porter because he was not tracking at all and acted as he would if deployed to bite and hold a suspect.  The court held that testimony regarding when the surveillance footage was played to be relevant. 

Nicky’s Records

According to the complaint filed in the case, “Nicky is a full grown male Shephard [sic], imported by the Hayward Police Department from the Netherlands at a cost of over $10,000, and trained in hard bitework.” 

The defendants produced records of all deployments of Hayward police dogs in the field up to the incident date, K-9 unit training records, and documents related to Cox’s personnel file, but they also sought additional records regarding complaints that had been made against Hayward’s K-9 officers which the court ordered to be produced.  Nevertheless, the plaintiffs alleged some records had not been produced but the court declined to compel additional discovery. 

Use of Excessive Force by Handler

The court then reviewed a number of Fourth Amendment cases, noting that the gravity of a particular intrusion requires an analysis of the type and amount of force inflicted, but also requires considering the severity of the crime, whether the suspect posed an immediate threat to the safety of the officers and others, and whether the suspect was actively resisting arrest or attempting to evade arrest.  See Miller v. Clark County, 340 F.3d 959 (9th Cir. 2003).  (For an extensive discussion of Miller and other cases, see Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues.)

The court noted that although Nicky was trained in the bite and hold method of suspect apprehension, Officer Cox said he had only commanded Nicky to track, which meant that the dog was “to continue the trail and alert when [he] locates a suspect.”  The dog here, of course, did more than alert.  Cox also stated that Nicky was not trained to bite a person who surrenders and is passive.  He was trained to rebite if he detected a person escaping or attacking.  Sergeant Sisson testified that Hayward K-9s were trained to apprehend on their own, that an officer did not need to give a separate command to bite.  Directly contradicting Cox, he also stated that “whether the individual is passive or aggressive,” the dog would bite and hold a suspect. 

The court concluded with regard to the claim for a Fourth Amendment violation by Officer Cox:

“The testimony of Sisson and Matthews calls into question the reasonableness of Cox's decision to deploy Nicky, on a thirty-three-foot leash, into the backyard of a private residence, without giving any warning to those residents. This, coupled with the disputed fact of whether Cox remained on the far side of the wall while Nicky searched through Mr. Porter's backyard, eventually biting and severely injuring Porter, leaves a sizeable task for the jury in determining whether Cox's use of Nicky was reasonable under the circumstances. Accordingly, the Court DENIES the motion for summary judgment on plaintiffs' [42 U.S.C.] § 1983 claim against Cox for the use of excessive force.”

Liability of Other Officers Present

The federal district court discussed cases that had held that officers have a duty to intercede with fellow officers who are violating the constitutional rights of suspects or citizens.  Both Officers Purnell and Miller were present when Cox lowered Nicky into the back yard, and Purnell actually helped with the lowering of the dog by holding the end of the leash.  Thus, the court declined to dismiss the § 1983 claims against these two officers or against the City.    

Qualified Immunity Applies to Some Claims

The court cited Watkins v. City of Oakland, 145 F.3d 1087 (9th Cir. 1998) for the proposition that using a police dog trained to bite and hold to effectuate a seizure is not a per se use of excessive force.  (See Police and Military Dogs, p. 268, for detailed discussion of Watkins.)  However, no Ninth Circuit case has held explicitly that a failure to warn before a seizure by a police dog is a violation of the Fourth Amendment, though the Fourth and Eighth Circuits have so held.  Cases in three other circuits have “concluded that a prior warning is not dispositive of the reasonableness of seizing an individual with a police dog, and thus there is no clearly established right to be warned.” 

Because the law on the matter is not clear in the Ninth Circuit, the court held that the “individual officers “are therefore entitled to qualified immunity from plaintiffs’ excessive force claim under § 1983, and the Court GRANTS the individual officers' motion for summary judgment.”

Liability of City of Hayward

The court noted that Cox in his deposition had stated that prior to biting Porter, Nicky had bitten three other people who were not the intended targets of a search.  He had bitten a non-suspect while attempting to apprehend a suspect in an armed robbery.  According to the court’s summary:

“The suspect was just outside the open doorway to a business…. When he would not surrender to the police, Cox ordered Nicky to apprehend the suspect….  Instead Nicky ran past the suspect, into the business, and bit another man unrelated to the robbery…. Cox chased after Nicky and found him biting the victim's leg.”

Sergeant Sisson, according to his deposition, had never discussed how frequently Nicky failed at searching for people in either deployment or training. This was stated despite the fact that Cox and Nicky had responded to 3,100 calls for service in Nicky’s time with the Hayward Police Department.  This indicates why good recordkeeping is important.  Although this number seems large, it could mean little more than that the handler and dog were on duty when thousands of events of significance to the police department occurred.    

The court concluded that “it remains for the jury to decide whether Nicky’s training was sufficient for the work the City had him doing and whether the City’s continued deployment of Cox and Nicky was a practice that resulted in the violation of Mr. Porter’s Fourth Amendment rights.” 

As to failures in the training of Cox and Nicky, the court concluded:

“Considering them in the light most favorable to plaintiffs, the facts plaintiffs have put forth to show the City has a policy of using improperly trained dogs are equally supportive of their theory that the City's failure to train their K–9 unit resulted in a violation of Mr. Porter's constitutional rights. From these facts, a reasonable jury could conclude that the City disregarded the obvious consequence that Nicky would bite a person other than the intended target of his search by continuing to deploy Nicky and Officer Cox.”

The statement should probably have emphasized improper training of the officers more than the dog.  The dog’s action was only the culmination of a long train of human errors.  The court also held that the City of Hayward’s failure to investigate and discipline the officers may have amounted to a ratification of unconstitutional conduct:

“After Nicky bit Mr. Porter, Officer Cox called Sergeant Sisson to report the bite. Sisson encouraged him that he did nothing wrong, affirmed that he could not have done anything differently, and called the incident an unfortunate accident [per Sisson’s deposition]. Yet both Sisson and Matthews testified that Cox should have kept Nicky in close proximity and alerted the residents before continuing the search through their backyards. Furthermore, Sisson did not investigate the incident other than speaking to Cox and reviewing his report…. He did not read the other officers' reports or the dispatch report….  Nor did any of Sisson's supervisors ask whether the deployment was reasonable…. Sisson did, however, discuss the incident with the K–9 handlers at a meeting…. Drawing all inferences in favor of plaintiffs, the Court finds that plaintiffs have shown a dispute of material fact as to whether the City's failure to investigate and discipline the officers for use of force against Mr. Porter demonstrates that the City ratifies unconstitutional conduct.”

Assault and Battery Claim Survives

A claim for assault and Battery against the police officers was not dismissed under the qualified immunity ruling because that concept does not apply to a state law tort claim.  A civil battery claim may be satisfied by showing that a defendant acted with willful disregard for the plaintiff’s rights:

“Plaintiffs have shown that Cox deployed a dog trained to bite and hold on a thirty-three-foot leash over a wall and into a backyard without warning. This is sufficient to establish a dispute as to whether Cox's decision evinces a reckless or willful disregard for a plaintiff likely to be in that backyard, as Mr. Porter was.”

Consequently, this claim was allowed to proceed.  A negligence claim also survived as to the officers, though not as to the City of Hayward as there is no state statute imposing a duty of care on the City to train its K-9 unit.  However, California law imposes liability on municipalities for the actions of their employees under the doctrine of respondeat superior.  Since Officers Cox, Purnell, and Miller were not immune from plaintiffs’ state law claims, neither was the City. 

Finally, the court allowed that the jury could consider punitive damages against the City for on the § 1983 claim, as well as on a state law claim that the City acted with “willful and conscious disregard of the rights or safety of others,” under California Civil Code § 3294(c)(1). 


The federal district court summarizes its lengthy decision with a list of the claims that remain to be tried:
  1. § 1983 claim for excessive force against the City of Hayward.
  2. Assault and battery, negligence, and wrongful death against the officers.
  3. Vicarious liability against the City for the tortious acts of the officers.
  4. California Civil Code § 3342 claim against the City.
The decision is well-reasoned.  Not surprisingly, the case settled before trial for, according to news reports, $1.5 million. According to an article by Henry K. Lee of the San Francisco Chronicle, Hayward will pay $250,000, with the rest picked up by insurance.

The most disturbing aspect of the case is that the K-9 unit had supervisors who did very little supervising and seemed unaware of the risks that were coming from an officer whose dog had already attacked innocent bystanders.  Here, though supposedly a tracking situation, there is some question whether the dog was really following a scent.  To lower such a dog into a back yard ahead of its handler, even for a minute, would seem highly negligent. 

The case is also a lesson for fellow officers who, often in the interest of station camaraderie, overlook violations of protocol and apparent recklessness of a dog handler with whom they have been assigned to work.  A police department that does not make it possible for such officers to bring their doubts to the attention of superiors is not well managed. 

One also wonders if the insurance carrier for the City of Hayward will be willing to continue coverage of a police department with such policies and weaknesses in its canine unit. The city will have to decide if such a risk should be allowed to continue.  Canine units, or at least teams with suspect apprehension functions, are sometimes disbanded solely to avoid passing on legal costs and rapidly escalating insurance premiums to taxpayers.

McKay v. City of Hayward, 2013 WL 2605782 (N.D. Cal. 2013)

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

Monday, August 5, 2013

Sight and Scent Identifications Collapse Eleven Years after Conviction

Gilbert Aguilar was convicted of first degree murder in 2002 in Los Angeles Superior Court (B164237, B174532, 2004 WL 2051385). An appeal of the conviction failed.  In 2009, he filed a habeas corpus petition with the federal district court for the Central District of California, which was denied (CV 06-00554, 2009 WL 509127). Both cases were summarized in an earlier blog.  He appealed the district court’s denial of his habeas corpus petition, and the Ninth Circuit has now reversed the district court and ordered the State of California to release Aguilar from custody or give him a new trial.   

Crime and Police Sketch of Shooter

John Guerrero was murdered on July 25, 2001, while waiting for a red light to change in La Puente, a town east of Los Angeles.  A passenger got out of a white Volkswagen, walked to Guerrero’s car, and discharged seven rounds from a semi-automatic pistol through the car window aiming only at the driver.  Guerrero was dead but the other passengers had ducked and were unhurt. 

Which Photo Looks More Like the Drawing?
About a month after the murder, a police artist made a sketch of the shooter based on descriptions of eyewitnesses, which did not include the passengers in Guerrero’s car who claimed not to have the perpetrator’s face. A probation officer thought the sketch looked like Gilbert Aguilar. A photograph of Aguilar and photographs of five other individuals were shown to the eyewitnesses who had helped the sketch artist, and all agreed the perpetrator looked like Aguilar, though only one made a positive identification.  (Research has indicated that a large number of variables, including putting someone in a lineup that resembles the perpetrator or who looks like a criminal, may increase the likelihood of a misidentification.  G.L. Wells, M. Small, S. Penrod, R.S. Malpass, S.M. Fulero, and C.A.E. Brimascombe, (1998). Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads. Law and Human Behavior, 22(6).)

Eyewitness Statements

The only issue at the trial was the identity of the shooter.  Aguilar’s defense was that another man who looked somewhat like Aguilar, named Richard Osuna, was the shooter.  One witness testified that “word on the street” was that Osuna, known as Gangster, had shot Guerrero.   After Aguilar’s arrest, secretly taped conversations he had with his girlfriend when she visited him in jail indicated that he was seeking ways to get evidence regarding Osuna to the police, but he was afraid because he and Osuna were in the same gang and Osuna would be likely to retaliate. 

The Ninth Circuit recounted the statements various eyewitnesses gave concerning the perpetrator as follows:

“[T]he eyewitnesses’ height, weight, and age estimates during the police investigation more closely resemble Richard Osuna (no more than 5’7” and 16 years old) than Aguilar (no less than 5’11” and 20 years old) at the time of the murder. Desiree Hoefer estimated the suspect to be no taller than 5’4”.Victor Jara estimated him to be 5’5” or 5’6”. After speaking to the Jaras and Kevin Feeney, Deputy Sheriff Blackmer described the suspect as 5’5”. Only Omar Soltero stated to investigators that the shooter was taller, and even he estimated the shooter to be several inches shorter than Aguilar. According to expert testimony, the witnesses would have been expected to overestimate, not underestimate, the height of a man carrying a gun. The eyewitnesses’ weight and age estimates are also more similar to Osuna than to Aguilar. Deputy Sheriff Blackmer reported, after speaking to the eyewitnesses, that the suspect was 130 pounds. That is 20 pounds lighter than Aguilar’s reported weight. Additionally, Hoefer and the Jaras estimated the perpetrator to be substantially younger than Aguilar.”

Eyewitnesses were not shown a photograph of Osuna at the time they were shown the six photographs that included one of Aguilar.  Copies of the sketch and the photographs of Aguilar and Osuna were included in an appendix to the Ninth Circuit opinion and are reproduced here side by side. 

The circuit court also noted that several of the eyewitnesses changed their testimony at trial from what they had said during the police investigation. 

Scent Identification

According to the Ninth Circuit:

“To supplement the physical evidence and eyewitness testimony, the prosecution put on evidence that a trained scent dog, Reilly, had identified Aguilar’s scent on the white Volkswagen. Shortly after Aguilar was arrested, Officer Joe D’Allura used Reilly to perform a scent comparison test between Aguilar’s scent and the scent found in the white Volkswagen. Scent comparison tests are based on the idea that every person has a unique scent, and that dogs can identify particular scents as belonging to particular objects and persons. A scent transfer unit extracted scent from Aguilar’s clothes and from the impounded vehicle. The extracted scents were then placed in sterile gauze ‘scent pads.’

“Reilly was first given a sample of Aguilar’s scent. Reilly then was led to a lineup of four scent pads, one of which had been collected from the passenger side of the impounded Volkswagen. He was trained to bark if he perceived a match between the sample scent and any of the scent pads. Reilly barked at the third scent pad, signaling a match between the scent pad from the Volkswagen and the scent from Aguilar’s clothes. While there were four scent pads in the line-up, Reilly only reached the third scent pad before he signaled a match. Reilly did not signal a match on the spent casings from the bullets fired at Guerrero.”

Although the failure of the dog to make a match as the casings might be exculpatory, it might also mean that the person who loaded the weapon was not in the VW at all.   

The scent tests were conducted on September 4, 2001.  Aguilar’s scent had been taken from his clothes when he was arrested the day before.  Officer D’Allura was unsure of when scent was taken from the impounded VW.  On cross examination he stated that it would have had to be taken within a week of the individual sitting in it, but later said that it could be taken later than that if the car had not been used “by other people and things.” 

Aguilar’s girlfriend testified that she sometimes wore Aguilar’s (her boyfriend’s) clothes and speculated that she might have put his scent into the VW.  (This has been shown to be scientifically possible.  See studies described in Transfer of Scent through Clothes, Police and Military Dogs, pp. 56-7.)

The jury was instructed that the dog scent evidence had been received to show that the defendant was a perpetrator of the crime of murder and that the jury should “consider the training, proficiency, experience, and proven ability, if any, of the dog.”

Jury Deliberations

The jurors asked for a response from the judge as to this question: if “the D.A.’s office did not pursue the ‘Richard Osuna’ lead,” was this was something the jury could consider in reaching a verdict.  The judge responded that “the state of mind of the investigator or the prosecutor, except as it relates to a bias, intent or other motive to fabricate evidence, is not relevant to the guilt or innocence” of the defendant. 

After one juror was dismissed and an alternate installed, the jury found Aguilar guilty and he was sentenced to 50 years to life in prison.

Police Dog’s Mistaken Identifications

Defense counsel was unaware at the time of Aguilar’s trial that the prosecution had stipulated in another case that Reilly, the scent dog, had made mistaken identifications on two prior occasions.  In People v. White, BA 212658 (Los Angeles Superior Court, 2002), the prosecution, while trying to introduce a scent identification made by Reilly, stipulated that in November 1997 Reilly had identified two different men as the source of scent on a murder suspect’s shirt (when it could only have been one of them).  In another case, People v. Bruner, BA 216390 (Los Angeles Superior Court, 2001), Reilly had identified as the perpetrator a man who had been in prison at the time the crime was committed.  The judge in White ruled that the dog scent procedures were so flawed that he would not allow the evidence of the scent lineup in.

After the White case, the Los Angeles County Public Defender wrote a letter to the LA District Attorney stating that every defense attorney who represents or has represented an individual in a case in which D’Allura “will or has presented evidence regarding his dog Reilly’s ability to detect scents” should be informed of the judge’s decision with regard to such evidence in White.  By the time the prosecution introduced the dog scent evidence in Aguilar’s case, Reilly was no longer working as a scent dog.  The defense counsel was not informed of any of these facts at the time of Aguilar’s trial and did not object to the admissibility of the evidence, though he stated he would have so objected had he known about Reilly’s history. 

Brady v. Maryland

Aguilar’s counsel filed a habeas petition with the California Court of Appeal, arguing that failure to disclose the exculpatory evidence was a violation of Brady v. Maryland, 373 U.S. 83 (1963). That appellate court affirmed Aguilar’s conviction and denied the habeas petition, saying that even had the jury been given the information about Reilly’s mistakes, it was not reasonably probable that “the result would have been different. “  A petition to the California Supreme Court was denied without comment.  As already mentioned, the federal district court also denied a habeas petition by Aguilar in 2009. 

The Ninth Circuit said that the issue before it was whether “the state court reasonably applied Brady to the facts in Aguilar’s case.”   The circuit court began by observing that there was “no doubt that Reilly’s history of making erroneous scent identifications is exculpatory evidence.”  There was also no doubt that the Los Angeles District Attorney’s office was aware of the decision on the habeas petition in White.  It was not clear if the individual prosecutor in Aguilar’s case knew about White, but he should have learned about it from D’Allura so either the prosecutor was “hasty in preparing his witness or D’Allura deliberately concealed from him Reilly’s prior record of misidentifications.”  Also, the knowledge of the District Attorney is imputed to prosecutors in his office.

The Ninth Circuit disagreed with the California appellate court as to the result of Aguilar’s trial had the scent identification been excluded:

“If the Brady evidence had been presented to the Aguilar court, it is virtually certain that the trial judge would have ruled as did the trial judge in White by excluding the evidence of Reilly’s scent identification. In at least two contemporaneous California state court trials, defense attorneys successfully challenged the admissibility of dog scent lineups.”

The other cases were a 1998 unreported case from the Orange County Superior Court (Rhoney, 94HF0957), and Mitchell, discussed in the same blog in which White was previously discussed by us. The circuit court also noted that, even if the dog scent evidence had been admitted despite White, the evidence of prior failures would have “provided powerful impeachment material.”  The jury, instead, “had no reason to question the accuracy of Reilly’s identification of Aguilar.” 

Without the dog scent evidence, the prosecution’s case would have been very weak:

“The gunman’s identity was the only issue in Aguilar’s case. Absent Reilly’s dog scent testimony, there was no corroborating evidence for the shaky eyewitness identifications. There was no forensic evidence, murder weapon, or confession. The prosecution did not tie Guerrero and Aguilar to each other in any way. The only motive given for the killing was the unsubstantiated suggestion that Guerrero had trespassed into the territory of Aguilar’s Puente Street gang, and this theory was suspect given that Guerrero was shot numerous times at close range while his passengers–equally trespassing–were left unharmed. The prosecution’s own gang expert testified that the fact that only Guerrero was shot indicates that he was the intended target, undercutting the government’s theory that this was a gang rivalry shooting. Richard Osuna, a suspect who had a motive to commit a targeted shooting, and who more closely resembled the eyewitness descriptions, had not been investigated.”


The Ninth Circuit held that “the prosecution’s failure to disclose that Reilly had a history of mistaken identifications violated Brady v. Maryland, and the California courts’ decision to the contrary was an unreasonable application of Brady.” The circuit court required “the State of California to release Aguilar from custody unless it grants him a new trial to commence within a reasonable period of time to be determined by the district court.” 

The case is correctly decided, though it does not go to the heart of what is wrong with scent identifications as used by U.S. law enforcement and accepted all too often by U.S. courts.  As has been argued elsewhere, scent lineups can be conducted in a rigorous manner in carefully controlled environments, preferably with multiple dogs, but that is not being done in the U.S. (except perhaps in some FBI investigations).  It is our opinion that even had there been no mistakes in Reilly’s history, no verifiable false positives, the sort of procedure used by D’Allura with Reilly should not be admissible in any case.  

Aguilar v. Woodford, 06-cv-00554 (9th Cir. 2013)

This blog was written by John Ensminger and L.E. Papet.  The authors thank Daniëlle Bes for comments on the case.