Friday, August 22, 2014

Yelling at the Umpire: What the Unanimous Decision of the Supreme Court in Florida v. Harris Is Coming to Mean to Law Enforcement in the United States

Criticizing a 9-0 decision of the United States Supreme Court, one without even a concurrence, without the hint of disagreement along the bench, is a little like yelling at the umpire.  You know you’re not going to change the call.  You just hope that the ump looks at the next pitch a little more carefully. 

When the Supreme Court issued Florida v. Harris on February 19, 2013, we found some reason to be hopeful that the Court’s decision would not lead to a decline in the standards of training and testing of narcotics detection dogs, and that field records would continue to be maintained for administrative purposes even though their relevance in criminal prosecutions was largely sidelined by the Court’s perspective.  Justice Kagan, after all, had written that the defendant could “contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.”  Also, she acknowledged that field records “may sometimes be relevant.” She had referred to the possibility of undermining the government’s assertion of probable cause from the dog’s alert by providing evidence that the dog had been cued by the handler to alert, though by declaring field records largely irrelevant she had made it difficult for the defense to gather some of the most important evidence that might support a cueing argument. 

We did not expect at the time Harris was handed down that some prosecutors would begin recommending field records be minimized, maintained no longer than necessary for administrative purposes, or worse yet destroyed so that statistics could not easily be gathered that might show that dogs were alerting in far more instances than the probabilities of drug use among the population would suggest were likely.  We did not expect that Justice Kagan’s words would be seen by law enforcement as confirming that there was no easier way to get into a car than to call for a drug dog, reliable or not.  As long as the dog gets there in an hour or so, there is probable cause.

We have been provided a copy of a dash cam video by a reporter with a major newspaper in which a deputy sheriff can be heard explaining to a ride-along, as the officer waits for the arrival of a K-9 team to conduct a sniff of a car he has pulled over on an Interstate, that the safest bet is not to try to justify a search based on circumstantial evidence but rather just to wait for the dog because that makes it easy for the courts, they don’t really need to hear anything else.  The stop involved was on a drug corridor on the side of an Interstate where cash is more often found, as in fact happened, not on the side where the drugs usually move.  The money was the real purpose of the stop.  There was not even any intent to make an arrest, rather just a desire to get the motorist to say that the money was not his, that it had been abandoned, so that it could be forfeited without further protest and thereby supplement the coffers of local, state, and federal law enforcement agencies.  Our analysis of the video suggests the very real possibility of intentional cueing. 

The Supreme Court has effectively blessed a shakedown industry that is becoming popular with certain elements in law enforcement across the country.  We explain why this is happening in an article that appeared in the latest issue of the Journal of Animal and Natural Resource Law of Michigan State University. 

John Ensminger and L.E. Papet 

Thursday, August 14, 2014

Service Dog Barred from International Flight; After Pre-Trial Ruling Opens Way for Monetary Damages, Parties Settle

Traveling with a dog or cat to Canada is easy as long as you have a veterinarian’s certificate stating the animal has been vaccinated against rabies within the last three years, unless the dog or cat is younger than three months, in which case it must be in good health when it arrives.  As to assistance dogs, a Canadian government website for travelers explains that if the animal is certified as a guide, hearing, or other service dog, there are no restrictions on the user being accompanied by the dog while in Canada.  A website of the Canadian Food Inspection Agency explains that certification for a service dog consists of documentation “by a recognized organization.”  If the service dog was self-trained, or not trained by a “recognized organization,” it could still travel as a pet as long as the owner had proof of rabies vaccination.  Presumably most travelers with service dogs make some kind of effort to get a relatively official looking letter stating that the dog is capable of providing services related to a disability.

Although no certification requirement will apply to a domestic destination, flying with a service dog into Canada is not much different from flying with one from New York to Los Angeles.  An airline in either instance must accept as evidence that an animal is a service animal (1) the credible verbal assurances of the individual with the disability who uses the animal, (2) the presence of harnesses, (3) tags, or (4) identification cards or other written documentation. In the Department of Transportation’s Draft Technical Assistance Manual on Nondiscrimination on the Basis of Disability in Air Travel (explaining to airline personnel regulations finalized in 2008), airlines are told the following regarding the placement of service animals in cabins:

“You must permit a service animal used by a passenger with a disability to accompany the passenger on his or her flight…. In addition, you must permit a service animal to accompany a passenger with a disability to the passenger’s assigned seat and remain there if the animal does not obstruct the aisle or other areas that must remain unobstructed to facilitate an emergency evacuation…. The service animal must be allowed to accompany the passenger unless it poses a direct threat to the health or safety of others or presents a significant threat of disruption to the cabin service.”

Specifically as to seating, the Manual states: “For a passenger with a disability traveling with a service animal, you must provide, as the passenger requests, either a bulkhead seat or a seat other than a bulkhead seat.”

If the animal is an emotional support animal, the airline can insist on a letter on the letterhead of a licensed mental health professional, including a medical doctor, specifically treating the passenger’s mental or emotional disability stating (1) the passenger has a disability contained in the Diagnostic and Statistical Manual of Mental Disorders, (2) the passenger needs the service animal as an accommodation for air travel or for activity at the destination, (3) the provider of the letter is a licensed mental health or medical professional treating the individual for the mental or emotional disability, and (4) the date and type of license of the professional.

Particularly relevant to the case about to be described, the Manual provides:

“Note that carriers are required to carry service animals even if the animal may offend or annoy carrier personnel or persons traveling on the aircraft…. [I]f you refuse to accept an animal as a service animal, you must explain the reason for your decision to the passenger and document it in writing.”

As to destinations outside the U.S., the Manual tells airlines:  “You must promptly take all steps necessary to comply with foreign regulations such as animal health regulations, to permit the transportation of a passenger’s service animal from the United States to a foreign destination.”

Thus, Canadian and U.S. law make it easy to fly into Canada with a service dog and use the dog during the visit.  This was not to be true for one Florida couple, however, as a recent case describes.  Adler v. WestJet Airlines, Ltd., No. 13-62824, 2014 U.S. Dist. LEXIS 92332 (DC So. Dist. Fla., July 8, 2014). 

Flight from Fort Lauderdale to Toronto

Barry and Melissa Adler bought tickets from WestJet Airlines to fly from Fort Lauderdale to Toronto on September 18, 2012.  Melissa, according to an opinion by Judge James I. Cohn of the federal district court for the Southern District of Florida, “suffers from numerous medical conditions and must be accompanied by a service animal.”  She sought advance approval from WestJet to bring her four-pound Yorkshire terrier on the flight and received a form letter from WestJet, in which the dog is described as an emotional support animal.   

(If I were advising an airline on such a letter, I would recommend that it explicitly state that, if the dog caused a significant disruption in cabin service, it might have to be removed from the cabin.  The Manual provides that a service animal "must be allowed to accompany the passenger unless it poses a direct threat to the health or safety of others or presents a significant threat of disruption to the cabin service." Such a statement could help deter people making bogus service animal claims to get their pets into the cabin and could remind people whose service animals are not fully trained or which might not react well to the stress of a flight that they should perhaps put the animal in cargo.  If this letter is standardly sent in response to requests to travel with emotional support animals, it is not clear why it does not ask for a supporting letter from a medical or mental health professional, though an airline certainly does not have to request such a letter. It is also possible that WestJet has several form letters for service animal requests. The complaint does indicate that written documentation was supplied by the Adlers prior to receipt of the letter from WestJet.)

According to the complaint, Melissa had specifically requested, and had been assigned, an aisle seat for herself and the dog.  On the day of the flight, the Adlers arrived at the gate with their boarding passes but “were told that WestJet’s senior flight attendant felt that Melissa’s dog would disturb other passengers.  WestJet thus moved the Adlers from their reserved seats to another pair of seats where the flight attendant thought the Adlers would cause less disruption.”

The court’s description continues:

“The Adlers boarded the airplane and took their newly assigned seats…. While waiting for take-off, Melissa took various medications, including some meant to induce sleep.... Melissa soon fell asleep with her dog on her lap….  While Melissa slept, Barry remarked to the flight attendant who had required them to change their seats that Melissa's dog was not causing any disturbance…. The flight attendant responded that she was uncomfortable with the Adlers and their dog being on the airplane…. The flight attendant informed Barry that the aircraft would return to the gate, and that the Adlers would have to deplane. Upon reaching the gate, WestJet's personnel required the Adlers to get up and leave the airplane…. [The complaint says that “the flight attendant ordered the Plaintiffs to get up.”]  Unfortunately, Melissa, who had taken sleep-inducing medication, had difficulty standing up and walking off of the aircraft…. The Adlers told the crew that Melissa would have trouble walking to the gate without assistance…. The crew, however, did not provide any assistance, such as a wheelchair, and the Adlers left the airplane under their own power.... At the gate, Barry demanded an explanation for their removal from the airplane, but received none.”

The complaint adds that at the gate, Barry Adler asked to speak with a Conflict Resolution Officer but none was present and none was made available.  He also requested the names of the flight attendants that had removed them from the airplane but no names were given. 

The Adlers went home.  That night, a WestJet official phoned the Adlers and apologized for their removal from the flight and arranged for the Adlers to fly from Miami to Toronto the next day. Undoubtedly someone in the chain of command at WestJet realized that the flight attendant had made a serious mistake, though the seriousness of the error did not become evident to the airline until the Adlers filed their lawsuit in December 2013, over a year after the incident.   

Melissa “suffers from a progressive disease of the nervous system,” which she contended was exacerbated from being forced to walk from the aircraft.  The Adlers also alleged that they were humiliated by being ejected from the airplane.  They asserted three causes of action:
  •  negligence
  •  fraudulent misrepresentation 
  •  negligent training and supervision
WestJet moved to dismiss each of these claims.  Judge Cohn’s opinion concerned his order granting dismissal, but with a right to amend, of several of the claims, and his denial of the motion to dismiss the negligence and negligent training claims.  This will, unfortunately for the law of service animals in flights, be the extent of the law from the case as the parties agreed to a confidential settlement and the federal district judge dismissed the case on August 11, 2014.  Nevertheless, what was decided is very important for those members of the service animal community who fly with their animals. 

Common  Law Negligence

The complaint alleged that WestJet had duties imposed by the Air Carrier Access Act and implementing regulations, but stated that the “lawsuit does not sound in violation of the ACAA, but in common law negligence.”  WestJet argued that Congress did not intend to create a private cause of action for ACAA violations and the Adlers could not assert a negligence claim implicating ACAA standards.  Judge Cohn rejected this argument “because although the ACAA may be relevant to WestJet’s duty of care, the mere fact of its relevance does not convert the Adlers’ negligence claim into a preempted claim to enforce the ACAA.” 

The Eleventh Circuit, in Love v. Delta AirLines, 310 F.3d 1247 (11th Cir. 2002), rejected a suit in which a disabled individual sought an injunction requiring Delta to comply with the ACAA, but Judge Cohn determined that the Adlers were not trying to enforce the ACAA as their claim was “one for simple negligence under state law,” and he found that the ACAA did not preempt their state-law claims.  Other cases, according to Judge Cohn, “have concluded that the ACAA, though it may not create a stand-alone cause of action for disability discrimination, does not preempt state-law negligence claims for injuries related to a failure to provide appropriate accommodations on airplanes.”  See, e.g., Gilstrap v. United Air Lines, Inc., 209 F.3d 995 (9th Cir. 2013); Elassaad v. Independence Air, Inc., 613 F.3d 119 (3rd Cir. 2010); Gill v. JetBlue Airways Corp., 836 F. Supp. 2d 33 (D.C. Mass. 2011). The court accepted, however, that “although the ACAA does not entirely foreclose claims by disabled individuals asserting injuries other than discrimination against air carriers, it does abrogate conflicting state-law standards of care.”

In order to establish common law negligence under Florida law, the Adlers would have to establish (1) a duty or obligation requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks, (2) a failure to conform to that standard, (3) a reasonably close causal connection between the conduct and the resulting injury, and (4) actual loss or damage.  The standard involved could, under Judge Cohn’s ruling, be based on ACAA requirements.

Fraudulent Misrepresentation

Since WestJet provided written permission to Melissa that she could fly with a service animal, the Adlers alleged that this “written representation by WestJet was a false statement concerning a material fact.”  Judge Cohn said that under Florida law:

“[A] plaintiff asserting a claim for fraudulent misrepresentation must allege a misrepresentation concerning a past or existing fact; promises of future action are usually insufficient…. A promise can support a fraud claim, however, when the promisor had no intention of performing at the time the promise was made. This is because a statement of the promisor's present intent is considered a statement of present fact…. [T]he Adlers were required to plead that WestJet had no intention to allow the dog on the airplane at the time of its promise.” 

The judge determined that the Adlers pleadings on this issue were “too conclusory to supply the necessary allegations of intent,” but he did consider it possible that “the Adlers may be able to remedy this deficiency through supplemented allegations.”  This claim was dismissed with leave to amend. 

Negligent Supervision

As to the third claim, Judge Cohn noted that it was really two claims:

“WestJet contends that the Adlers have failed to plead a claim under Count III of their Complaint, for negligent training and supervision, because they do not allege that WestJet had notice that any of its employees were unfit for their jobs. Though plaintiffs often bring claims for negligent training and negligent supervision together, the two causes of action are distinct, and only a negligent supervision claim requires the plaintiff to allege that an employer knew or should have known that its employee was unfit. Accordingly, the Court will dismiss Count III only insofar as it alleges negligent supervision, and will allow the Adlers to proceed on a theory of negligent training.” 

Judge Cohn elaborated on the negligent training issue as follows:

“Drawing all permissible inferences in the Adlers' favor, the Complaint also pleads sufficient facts to show that the Adlers, as passengers on a WestJet flight, were in a reasonably foreseeable zone of risk from the actions of WestJet's flight crew, such that a legal duty of care in training the flight crew ran from WestJet directly to the Adlers. Accordingly, the Court finds that the Adlers have pled sufficient facts to sustain Count III on a theory of negligent training.”

Montreal Convention

The prior arguments could apply to a domestic flight as well as to an international flight, but WestJet added an additional preemption argument that could only apply to an international flight.  WestJet argued that all of the Adlers’ claims were preempted by the Convention for the Unification of Certain Rules for International Carriage by Air, commonly known as the Montreal Convention.  The Convention has 107 signatories, including the United States and Canada.  In Article 17, the Convention provides:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.” 

An accident has been defined as including an unexpected or unusual event or happening that is external to the passenger,” which Judge Cohn determined could include “a flight crew’s unexpected and unusual response to a passenger’s medical condition….”  The injuries of the Adlers were within the scope of the Convention, which expressly provides for recovery of certain personal injury claims subject to certain limitations on liability.  The Convention’s liability limitations are complex, but for present purposes, limit some recoveries to under $200,000 if an injury was not due to a carrier’s negligence.  Judge Cohn ruled that the Montreal Convention permitted the Adlers to “proceed on state-law claims within the scope of the Convention, subject to the Convention’s limitations on liability.”


Having failed to derail most of the Adlers’ lawsuit, perhaps facing considerable liability from a trial, WestJet agreed to settle.  The particulars of the agreement reached by the parties were not provided in filed documents nor to my knowledge made public and I do not know the size of the settlement. Monetary issues might not have been the only factor encouraging WestJet to settle.  The claim for negligent training involved reputation risk.  No airline wants bad press concerning its training programs at a time when security issues are paramount in the public’s mind.   

WestJet’s quick apology the night of the event suggests that the ejection of the service dog may have happened in part because this was an international flight.  Crews on domestic flights are more likely to know about service animal rules, whereas taking a service dog on an international flight is less common. The crew may have even been based in Canada. In any case, the owner of the service animal has to be sure that he or she will be able to use it in the foreign country, and some foreign countries still limit recognition of service animals to guide dogs.  One does not want to take a service animal aboard a flight only to discover that it will be required to go into quarantine at the destination.  Many people will not want the headaches of preparing in advance for such possibilities, even though Canada is quite relaxed in this regard.    

The analysis by Judge Cohn concerning the incorporation of the ACAA standard into state negligence concepts on the duty of care will be important in subsequent lawsuits where airlines do not accept service animals, and will no doubt also be cited in negligence cases where the entity denying admittance is covered by the Americans with Disabilities Act.  The negligent training and supervision claims will be made in similar cases in the future, though pleading will be refined as a result of Judge Cohn’s decision.  Airline defendants may try to refine the Montreal Convention argument that WestJet tried.  This is a significant case in service animal law.