Negligent Euthanasia at Fort Worth Pound Deprives Family of Dog: Texas Supreme Court Allows Only Trivial Compensation

Avery, the dog of Kathryn and Jeremy Medlen, escaped from their back yard on June 2, 2009, and was picked up by Fort Worth Animal Control.  The Medlens did not have enough money to pay the fees to get him out of the pound but promised to return on June 10 when they would have the money. The Medlens were told by Animal Control officials that a “hold for owner” tag had been placed on Avery’s cage to notify employees that Avery was not to be euthanized.  On June 6, an employee of the shelter, Carla Strickland, put Avery on the list of animals to be euthanized anyway. He was put to death on June 7.

Fort Worth Animal Control Main Facility

The Medlens returned for their dog on June 10 and learned his fate.  The Medlens sued Strickland, alleging that her negligence was the proximate cause of Avery’s death.  They sued for “sentimental or intrinsic value” because Avery had little or no market value, but was to them irreplaceable.  Strickland excepted to the claim for intrinsic value and the trial judge ordered the Medlens to amend their pleadings to state a claim for damages recognized at law.  The Medlins filed an amended petition but continued to seek damages based on intrinsic value.  The judge dismissed the lawsuit and the Medlens appealed.

A picture of the dog and the Medlens was published by ABC News.

An 1891 Texas Supreme Court Case  

The Texas Supreme Court had stated more than a century ago, in 1891, in the case of Heiligmann v. Rose, 81 Tex. 222, 16 S.W. 931 (Tex. 1891), that dogs could be valued specially based on their usefulness or services to a master.  In that case, three dogs were poisoned.  One of the dogs was described as a Newfoundland that “was trained to signal the arrival of any person at appellees’, who could tell from his bark if the person was man, woman, or child.”  The owners of the dogs sought $25 for the loss of each of the three dogs as actual damages and $75 of exemplary damages. The Texas Supreme Court concluded in the case:

“There is no evidence in this case that the dogs had a market value, but the evidence is ample showing the usefulness and services of the dogs, and that they were of special value to the owner. If the jury from the evidence should be satisfied that the dogs were serviceable and useful to the owner, they could infer their value when the owner, by evidence, fixes some amount upon which they could form a basis. We cannot say that the verdict in this case is not based upon actual damages, and when the evidence, as it does in this case, justifies a verdict for either actual or exemplary damages, or both, we will not presume that the finding of the jury was based on grounds not proper. We find no error in the record, and report the case for affirmance.”

Fort Worth Court of Appeals

The Medlens argued that the Texas Supreme Court had on occasion accepted intrinsic or sentimental value as a basis for damages, though it had not done so in the case of a pet.  Thus, sentimental value had been allowed in City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997) for the loss of family correspondence, family photographs, and keepsakes.  Intrinsic value had been allowed for shade or ornamental trees in Porras v. Craig, 675 S.W.2d 503 (Tex. 1984).  Sentimental damages were allowed for the loss of a wedding veil, watch, and other items in Brown v. Frontier Theatres, Inc., 369 S.W.2d 299 (Tex. 1963). 

In Bueckner v. Hamel, 886 S.W.2d 368 (Ct. App. 1994), plaintiff sued defendant for shooting two of his dogs.  Damages of $1,825 had been awarded in that case, more than market value, perhaps including stud value.  The appeals court accepted this valuation of actual damages but did not address whether intrinsic value was involved.  A concurrence in the case stated:

“Society has long since moved beyond the untenable Cartesian view that animals are unfeeling automatons and, hence, mere property. The law should reflect society's recognition that animals are sentient and emotive beings that are capable of providing companionship to the humans with whom they live.”

In Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554 (Ct. App. 2004), the Austin Court of Appeals held that a trial court could not award damages for mental anguish, counseling costs, and loss of companionship when plaintiff’s dog escaped from a groomer and was run over.  The Fort Worth Court of Appeals disagreed with “our sister court’s interpretation.” This court noted that Heiligmann had stated that dogs could be of “special value to the owner,” and argued that “the special value alluded to by the Heiligmann court may be derived from the attachment that an owner feels for his pet.”

The appellate court, applying these cases to the Medlens’ loss of Avery, concluded that “the special value of ‘man’s best friend’ should be protected,” and reversed.  Strickland, now on the hook for much more than Avery’s market value, appealed to the Texas Supreme Court.

Texas Supreme Court

The lawyers for the Medlens likely realized they had lost on the second appeal when they saw that the opening words of the Supreme Court’s opinion consisted of a quote from Lord Byron concerning a Newfoundland dog’s monument: “Beauty without Vanity, Strength without Insolence, Courage without Ferocity, And all the Virtues of Man without his Vices.”  Courts tend to adopt such flowery language when they are going to find that the law does not support the sentiment behind the quote but they want to associate themselves with that sentiment rather than the result they are actually imposing.  Such was the case here.  The Court piled it on in the first paragraph: “Even the gruffest among us tears up (every time) at the end of Old Yeller.”

The Court stated the problem it was facing:

“In today's case, involving a family dog that was accidentally euthanized, we must decide whether to adhere to our restrictive, 122–year–old precedent classifying pets as property for tort-law purposes, or to instead recognize a new common-law loss-of-companionship claim that allows noneconomic damages rooted solely in emotional attachment, a remedy the common law has denied those who suffer the wrongful death of a spouse, parent, or child, and is available in Texas only by statute.”

The Court concluded that though “relationship attachment is unquestionable,” it was nevertheless “uncompensable.” The decision of the Fort Worth Court of Appeals was held to be an unwarranted extension of the law regarding the loss of a pet. As to Heiligmann, the Supreme Court stated:   

“[A] dog's ‘special or pecuniary value’ refers not to the dog-human bond but to the dollars-and-cents value traceable to the dog's usefulness and services. Such value is economic value, not emotional value based on affection, attachment, or companionship. In short, Heiligmann's use of the word 'special' does not authorize 'special damages' and does not refer generically to a dog's ability to combat loneliness, ease depression, or provide security. The valuation criteria is not emotional and subjective; rather it is commercial and objective.”

The Court distinguished Porras, involving the destruction of shade trees, by stating that the recoverable “intrinsic value” there was the “ornamental (aesthetic) value” and “utility (shade) value” of the trees, which were “not rooted in an owner’s subjective emotions.” The gravamen of the Medlens’ claim, according to the Court, was “fundamentally a form of personal-injury damage, not property damage,” akin to loss of consortium, which is a category of recovery “available only for a few especially close family relationships.” 

“Therefore, like courts in the overwhelming majority of other states, the Restatement of the Law of Torts, and other Texas courts of appeals that have considered this question, we reject emotion-based liability and prohibit recovery for loss of the human-animal bond.”  The cases that do not fit within the “overwhelming majority” are at the end of a footnote to the statement.  They involve cases in Florida, Louisiana, and New York (Knowles Animal Hospital, Inc. v. Wills, 360 So.2d 37 (Fla. App. 1978) (jury could consider mental pain and suffering when dog suffered injuries while under veterinarian’s care); Barrios v. Safeway Ins. Co., 97 So.3d 1019 (La. App. 2012) (allowing recovery for mental anguish when owner was nearby and suffers psychic trauma because “clearly, pets are not inanimate objects”); Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d 182 (Civ. Ct. 1979) (plaintiff that discovered dead cat in casket meant for her dead dog was entitled to damages beyond market value)).  (All links are to the cases as posted on the Michigan State University College of Law Animal Legal and Historical Center.  See also Note by Rebecca F. Wisch: Quick Summary of Pet/Companion Animal Damages, listing additional decisions.)

The Texas Supreme Court received amicus briefs from animal welfare organizations and noted that these organizations were arrayed on both sides of the issue, with the majority opposing allowing emotion-based damages:

“Several animal-welfare groups—organizations that understand the intense grief and despair occasioned by a pet's death—insist that relational-injury damages would adversely impact pet welfare. For example, the American Kennel Club, joined by the Cat Fanciers' Association and other pro-animal nonprofits, worry that ‘pet litigation will become a cottage industry,’ exposing veterinarians, shelter and kennel workers, animal-rescue workers, even dog sitters, to increased liability: ‘Litigation would arise when pets are injured in car accidents, police actions, veterinary visits, shelter incidents, protection of livestock and pet-on-pet aggression, to name a few.’ As risks and costs rise, there would be fewer free clinics for spaying and neutering, fewer shelters taking in animals, fewer services like walking and boarding, and fewer people adopting pets, leaving more animals abandoned and ultimately put down. The Texas Veterinary Medical Association sounds alarms of ‘vast unintended consequences,’ asserting its members would have no choice but to practice defensive medicine ‘to safeguard against potential claims of malpractice.’ The unfortunate outcome, they contend, would be higher prices for veterinary care, thus fewer owners bringing in their pets for needed treatment. Families, particularly lower-income families, will avoid preventive care for their pets, not seek needed care for ill or injured pets, and be more apt to euthanize a pet. The Texas Municipal League and other government associations worry about police officers and animal-service employees being second-guessed for split-second decisions they must make in the field when they encounter loose and potentially dangerous animals. Not all dogs are good-natured, they warn, and government workers must be free to take swift action to protect citizens rather than worrying about lawsuits that, even if successfully defended, drain finite taxpayer resources. Various insurance groups caution that expanded damages would spike the cost of insurance across the board, not just for veterinarians but also for homeowners and automobile drivers, ‘inflat[ing] the value of property loss far above that which insurance contracts have been written to cover with serious consequences for the affordability and availability of insurance in Texas.’”

These are not negligible considerations, and the Court argued that the costs of allowing damages for emotional loss in pet situations might be best be calculated with a cost-benefit analysis.  For this, the Texas legislature is better equipped than the judicial system: 

“Perhaps the Legislature will enact a more generous valuation formula for family pets. Valuation derives fundamentally from values, and elected legislators may favor scrapping the 'property' label and reclassifying companion pets as something more elevated. The Legislature has passed a wrongful-death statute for humans; it has not (yet) for animals. Given the competing public-policy considerations, we believe if there is to be expanded recovery in pet-death cases, it, too, should be confronted legislatively, not judicially.”

The Court noted that some state legislatures had put limits on non-economic damages in losses of companion animals, including Tennessee ($5,000), Maryland ($7,500), Illinois (case must involve aggravated cruelty or torture, not ordinary negligence). 

Of course, had the Texas Supreme Court affirmed the appellate court, the legislature would have received pressure from various elements in the pet industry to put a cap on the limits that could be awarded for animal loss.  This would have been a powerful force in getting the legislature to move. 

Conclusion

The opinion of the Texas Supreme Court is not to be pilloried, as the Court clearly wants the legislature to wake up and do its duty to the citizens of the State of Texas and their pets.  Nevertheless, I disagree.  The common law can and does recognize social change, and social change regarding the values of pets there has certainly been.  A change in the law to accept damages for emotional suffering is appropriate, and the legislature could then decide whether there should be limits on such awards. 

I suspect that many animal owners, myself included, would not have a problem with certain limits on recoveries.  Veterinary expenses would substantially increase if veterinarians had to pay the kind of malpractice insurance premiums that physicians pay, part of which is based on damages that can arise from emotional suffering.  Dog pounds, however, are too often poorly run, and I have covered cases of negligent euthanasia before.  The Fort Worth Court of Appeals was right to lay blame where it belonged and place monetary responsibility on those who were careless. 

Strickland v. Medlen, 2013 WL 1366033 (Texas 2013), reversing No. 02-11-00105-CV (Tex. App. Dist. 2 2011). 

Thanks to Suzanne Boule for thoughts on this issue.  She says that kill shelters are virtually unknown in France and Germany.  Thanks also to Dennis Civiello for noting that one should check out the positions of various canine organizations on such issues in deciding where to donate or bequeath.  You might learn that an organization does not have animals in mind as much as its own revenue sources. 

Sidestepping the Supreme Court: High Electrical Usage Justifies Front-Door Sniff in Texas

Sergeant Robert Clark, working on a narcotics task force, initiated an investigation of a grow house in December 2010 after receiving an anonymous tip.  The tip was that hydroponic marijuana was being grown at a house near Houston, Texas, in Harris County.  He drove to the location to determine whether he could observe indicators of a grow house.  In addition to seeing a vehicle belonging to the individual about whom the tip had been given, the Texas appellate court states:

“At the address, he observed the windows were tightly covered; the yard was a little unkempt; and even though two vehicles were in the driveway, the home appeared vacant, all of which are typical indicators of a grow house. He traveled to the home several more times that week in a ‘drive-by surveillance,’ and on each of these occasions, he observed other indicators typical of a grow house, such as exterior lights on during the daytime hours and no vehicles on the premises. On one of these occasions, he saw another vehicle, registered to appellant, leaving the home.”

Sergeant Clark executed a subpoena on Centerpoint Energy and learned that the electrical usage at the home was unusually high, and had increased significantly from March 2010 to December 2010.  Prior to March, usage had been low, indicating either that it had been vacant or possibly that the electrical meter had been bypassed, which is common with grow houses.  Later, it was established that the meter had been bypassed, then repaired, resulting in the increased usage from March on.  Centerpoint Energy listed the account for the home in the name of Wesley Jerome Wright.

The court’s narrative of events describes the use of a narcotics detection dog:

“On December 6, 2010, Sergeant Clark initiated a ‘knock and talk’ investigation at the home. When he arrived, he observed a vehicle registered to appellant in the driveway, the blinds to the home tightly closed, and the home's exterior lights on during day-time hours. Sergeant Clark called other uniformed law enforcement officers for assistance, as well as a narcotics-detection dog. Once other officers, including Deputy James Savell, arrived on the scene, they approached the home in raid gear and prepared to raid the home. The officers knocked several times without any response. They heard music inside the home. At the front door, they detected the odor of ‘skunk weed,’ a strong-smelling type of marijuana. Once the officers detected that odor, and after knocking again at the door with no response, the narcotics-detection dog was asked to conduct an “open air sniff” of the exterior of the front door; the dog alerted to the presence of marijuana. Deputy Savell then left the premises, sought and obtained a search warrant of the home, and returned to the scene.”

The warrant was then executed:

“Armed with a search warrant, the officers again approached the home in raid gear, knocked on the door and received no response. They entered and once inside, officers detected the strong odor of marijuana and saw that a bedroom and garage had been converted to hydroponic grow rooms containing in total 155 live marijuana plants, with an estimated value of $138,000. Another room contained marijuana that already had been dried and harvested. Officers observed equipment and supplies associated with hydroponic marijuana cultivation and packaging. The rooms of the home were insulated and carefully controlled with lighting, ventilation, and temperature apparatuses. Two of appellant's separate fingerprints were identified and lifted from a metal halide light shroud in one of the growing rooms. The kitchen had no food and very few typical kitchen items. The home contained little furniture and no clothing, and appeared as if no one had lived in the home recently. There was one bed, but it did not appear as if anyone had slept there because it was covered with other items. Inside the home, officers found documents, some of which were dated over one year old, belonging to several other individuals. According to officers who executed the search warrant, although a single person could tend to a hydroponic operation of this complex scale, that person would need to be at the home at least every one to two days.”

A neighbor told Sergeant Clark that he had seen Wesley Wright at the home the day before, and he was able to give a history of Wright’s use of the home, initially with his wife, then after Wright’s divorce with other people.  An arrest warrant was issued for Wright a week after the raid and Wright turned himself in to authorities. 

Wright filed a motion to suppress with the trial court, arguing, among other things, that the dog’s open-air sniff was a warrantless search without probable cause that was prohibited by the Fourth Amendment.  Wright presented some evidence that he had leased the premises from February 2010 but kept the electrical bill in his own name because of the tenant’s poor credit.  Wright’s current wife stated that she and Wright had gone to collect rent or tend to the yard on occasion but had not entered the house.  She testified that they left a car overnight outside the house once because it would not start, but her testimony was inconsistent with some of that given by the neighbor.  The police were unable to locate anyone with the name that Wright gave them for the tenant, and they question whether such a person even existed. 

A jury found Wright guilty of a narcotics offense and he was sentenced to eight years in prison.  He appealed.

Appeal

Among other issues raised on appeal, Wright argued that:

1. Sergeant Clark lacked probable cause to conduct a “knock and talk” investigation.
2. Though the alert of a trained and certified narcotics-detection dog provides probable cause for the issuance of a search warrant, this court could not consider the statements in the affidavit regarding the narcotics-detection dog.  This is because the officers lacked reasonable suspicion that drugs or contraband were at the location before using the narcotics-detection dog, and without the alert by the narcotics-detection dog, the affidavit does not show probable cause for issuing a search warrant.

These arguments were not made during the trial, however, and the appellate court determined that Wright had “thus failed to preserve error as to these complaints.”  Also, on appeal, Wright “has not asserted his trial-court arguments that the use of the narcotics-detection dog itself was an impermissible search or that probable cause was required before the officers could use the dog.  Thus, these arguments are not before this court.” It is not clear why Wright’s counsel did not preserve these issues for the appeal. 

As to the effect of the Supreme Court’s decision in Florida v. Jardines, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013), which had not been issued before appellate briefs were filed in Wright, the Texas appellate court stated:

“The information in the affidavit other than the statements regarding the narcotics-detection dog was acquired independently from the use of the dog and in a lawful manner. Thus, even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, the search warrant would not be rendered invalid if, putting aside the statements in the affidavit regarding the dog, the remaining information in the affidavit clearly established probable cause.”

The non-canine evidence in the affidavit included:

“(1) information from a credible and reliable source indicated the electrical power meter at the home had been bypassed and altered to display a lower usage reading; (2) Sergeant Clark knows, via training and experience in investigating indoor hydroponic marijuana-growing operations that electrical meters are often bypassed to avoid detection; (3) information from a credible and reliable source further indicated that Centerpoint Energy Company fixed the meter in February 2010; (4) once the meter was repaired the power usage sharply increased to rates roughly five times that of adjacent houses of similar size; (5) every window in the residence had mini-blinds that were tightly shut, which was known to Deputy Savell to be a common characteristic of marijuana grow houses; (6) area residents reported that individuals were only at the house on a sporadic basis, which was known by Deputy Savell to be a common characteristic of marijuana grow houses; (7) a vehicle registered to appellant was observed at the residence; and (8) appellant has a prior arrest and conviction for narcotics distribution.”

Thus, Justice Kem Thompson’s majority opinion concluded:

“Even if the use of the narcotics-detection dog were an unreasonable search that violated the United States Constitution, we would conclude that under the totality of circumstances the remaining information in the affidavit would clearly establish probable cause that contraband or evidence of a crime would be found at the described location.”

The court therefore affirmed Wright’s conviction.

Dissent

Justice Tracy Christopher dissented, arguing that she “would hold that, after removal of the dog sniff alert from the affidavit, the remaining facts in the affidavit are insufficient to clearly establish probable cause.”  She agreed that the removal of the evidence from the illegal search could arguably leave enough other evidence to establish probable cause, but argued that this was not true here.  She noted that Jardines involved similar information:  “an uncorroborated crime stoppers tip that marijuana was being grown at the house, tightly closed blinds, and an air conditioner that kept cycling without stopping, indicating high electrical usage.” 

As to the anonymous tip, Justice Christopher said that “Clark never established the informant’s credentials in any meaningful way.”  This should perhaps have been of more concern to the trial court. 

As to the electrical usage, the affidavit did not establish how it was calculated that the house’s usage was five times what would be expected in the neighborhood. The mini-blinds that were “tightly drawn” and the testimony of individuals being seen at the house on only a sporadic basis were “innocent facts,” according to the dissent. 

The vehicle sometimes parked outside the house was not associated with any crime. 

Justice Christopher concluded:

“In sum, we have uncorroborated, possibly stale, excessive electrical usage, closed blinds, and sporadic sightings of the residents of the house. This cannot be enough to clearly establish probable cause that a crime is being committed. Because the majority concludes that it is, I dissent.”

Jardines

The authors are preparing a law review article analyzing Jardines, along with Harris, the other police canine case issued by the Supreme Court in the last term and will reserve a more complete evaluation of those decisions for that venue. 

The Supreme Court opinions in Jardines, both the majority opinion, the concurrence, and the dissent, largely restricted their debate to the issues surrounding the use of the dog.  To get more of the non-canine facts, one must look at the prior trail of appellate decisions, particularly that of the Florida Supreme Court (Jardines v. Florida, 73 So.3d 34 (Fla. 2011).  The affidavit submitted to obtain the warrant in Jardines consisted of the following:

1. A “crime stoppers tip that marijuana was being grown at the describe residence.
2. Surveillance at the residence included the observation of “no vehicles in the driveway.”
3. The officer “observed windows with the blinds closed.”
4. The smell of live marijuana plants was detected when the officer was on the front porch with the dog.
5.  The officer “heard an air conditioning unit on the west side of the residence continuously running without recycling.”

Thus, the only significant differences between the facts of Wright and those of Jardines were the greater effort made in Wright to determine the pattern of electrical usage of the premises and the description of the visits of the defendant by one of Wright’s neighbors.  Whether this is enough to justify the opposite result to that mandated by the U.S. Supreme Court may be determined in subsequent appellate proceedings in Wright. 

Conclusion

It often takes years for the significance of a Supreme Court decision to become apparent.  Because the Court was so divided in Jardines, lower courts may feel less constricted in applying its pronouncements to situations that are similar.  Police will want to get more evidence before they bring a dog to a front porch than was the case in Jardines, but how much more will only become clear as courts handle variations in facts of front-door sniffs in the coming years.  It should not be assumed that the same facts as in Wright will lead to the same result in other jurisdictions. 

Wright v. Texas, No. 14-12-00285-CR, 2013 WL 1908932 (App. Ct. 2013).  On “knock and talk” as an investigative technique, see Craig Bradley, “Knock and Talk” and the Fourth Amendment, 84 Indiana Law Journal 1099 (2009).

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

Harassment Claim Disrupted Airport Bomb Dog Unit, Ended Off-Lead Program at LAX

A recent appellate court decision in California has thrown harsh light on bomb dog programs at Los Angeles International Airport over a period of four years, from 2004 to 2008, and perhaps beyond that.  According to the decision in Blackstone v. City of Los Angeles, police administrators, reaching all the way to senior officials in the Commissioner’s office, allowed fear of a lawsuit, and then strategy in defending against the lawsuit, to drive important administrative decisions regarding the LAX bomb dog programs. This political football contained the risk of affecting the safety of the traveling public. 

Dual Canine Programs at LAX

Responsibility for security at the Los Angeles International Airport (LAX) is shared by the Los Angeles Police Department and the Airport Police Department (Airport PD).  Both have canine units and, according to an appellate court in California, there is a good deal of animosity between the two units. Officers in the LAPD’s LAX Unit apparently see the Airport PD employees as security guards who should not be allowed to handle police dogs. This kind of friction between K9 units with contiguous operations is not uncommon.   

According to the court:

“One morale booster was a bulletin board located in the LAX Unit's squad room, referred to as the ‘Wall of Shame.’ Members of the two organizations posted cartoons and photographs poking fun at one another, which contributed to camaraderie between the two organizations.” 

Supervisors of both units knew of the Wall of Shame and permitted it to continue, though they cautioned members of the units to be careful with postings and not to post anything making fun of someone who was “thin-skinned.”  The Wall of Shame became a factor in an employment law dispute that began in 2004, involving a supervisor, Blaine Blackstone, and a K9 handler, Patricia Fuller (referred to as Patty Fuller in news reports). 

Blaine Blackstone’s History with the LAPD

Blaine Blackstone joined the LAPD in 1979 and was promoted several times to become an assistant squadron leader with a pay bonus for hazardous duty.  In 1989, ten years after joining, he took a pay cut because he wanted to be a police dog handler.  He was in time transferred to the Narcotics Division K9 unit.  He became a Sergeant in 1998.  His performance evaluations were consistently high. 

In May 2003, Blackstone was appointed to a supervisory position in the LAX Bomb Detection K9 Unit (LAX Unit), a coveted position in the LAPD.  He learned of the position from Patricia Fuller who had worked with him previously.  In May 2004, Sergeant Chris Thiffault was assigned to the unit, also a supervisor though, because of a lack of K9 experience, with administrative responsibility.  Both Blackstone and Thiffault reported to Robert Green, Officer in Charge (OIC) of the Hazardous Devices and Material Section of the LAPD. 

Blackstone quickly became aware of the animosity between the LAPD K9 handlers and the Airport PD K9 handlers, but told everyone he did not share such an attitude.  He organized joint training and social activities.  Officials of the LAPD, the Airport PD, and even the federal Transportation Security Administration recognized Blackstone’s efforts to resolve morale and cooperation problems between the two sets of K9 handlers.  He was also credited with implementing of an off-lead detection (OLD) program at LAX, where dogs roamed off-lead among people and baggage to detect guns and explosives.  Blackstone received letters of commendation for this program and spoke at an international conference held by the TSA.

Blackstone’s Evaluation of Fuller

Patricia Fuller, despite being part of the reason that Blackstone began working at LAX, was one of his problems when it came to animosity between the separate K9 units.  She refused to participate in training exercises if Airport PD officers were participating, and even refused to enter LAX Unit offices if an Airport PD car was parked outside.  Various parties said she was divisive, confrontational, negative, and a superior even described her as “an institutional terrorist.”  According to the appellate court’s summary of the facts:

“Fuller frequently used vulgar and suggestive language and conduct of a sexual nature, which had a disruptive effect in the workplace. She routinely complained about everything that happened in the LAX Unit, particularly if it involved the Airport PD. However, she never complained about the ‘Wall of Shame’ or complained of sexual harassment or gender discrimination.”

In a performance evaluation of Fuller in September 2004, Blackstone rated her overall performance as proficient, the highest rating possible.  He said she showed tremendous initiative, was “very outgoing and friendly” while patrolling the airport and displayed “exceptional duty performance.”  He said she had excellent K9 handling skills but recommended that she “focus her considerable energy and ability on her specific duties and the task at hand.” He rated her competent, rather than strong, in teamwork and effect on morale due to the fact that he found her “an obstacle to the overall goal of bringing the two units together.”  He believed that if she would focus her energy on being a good dog handler, rather than on complaining about the Airport PD, her performance would improve. 

The evaluation was read and approved by Thiffault, Green, and Captain Roper.  Blackstone put it in an envelope and left it on Fuller’s desk since she was on vacation and he was going out of town for a conference and to purchase dogs.  When she returned she received a call from Captain Roper who said he was going to come by the LAX Unit office the next day.  Fuller took some cartoons and photographs off the Wall of Shame because she had seen Roper do the same earlier and she did not want the unit to be embarrassed. She kept the material she took down.  

Then she read Blackstone’s evaluation of her.  She was unhappy with the competent ratings in three categories and felt the comment about focusing her energy was a personal attack. 

Fuller Asks That Performance Evaluation Be Revised

Fuller contacted Thiffault and another Sergeant and asked that the evaluation be revised to change the competent ratings to strong.  She told Sergeant Michael Salinaz that she was going to “lawyer up.”  Salinaz passed this on to Captain Roper, who contacted Green, who had just been promoted from Lieutenant to Captain.  A meeting was set up where Fuller met with Green, Salinaz, and Lieutenant Justin Eisenberg who was replacing Green as OIC of the Hazardous Devices and Material Section of the LAPD.  She produced the cartoons and pictures from the Wall of Shame and said that these established that she was working in an unfavorable work environment, which she further described as “sexually hostile.”  She asserted that she was being left out of training (which was understandable if she was refusing to participate in joint training exercises). 

Captain Green believed Fuller intended to sue the city if her performance evaluation was not changed.  He contacted higher officials in the LAPD including a Deputy Chief.  Eisenberg met with Fuller and Blackstone, who was now back in Los Angeles.  Blackstone agreed to change the competent evaluation for physical fitness to strong and to add information regarding Fuller’s training and accomplishments, but he refused to change the ratings for teamwork and effect on morale. 

During a break in the meeting, outside of Fuller’s presence, Eisenberg told Blackstone to change all of Fuller’s ratings to strong because if he didn’t, Fuller was “going to sue the Department for sexual harassment or gender bias.”  Blackstone held to his position and refused to change the two ratings.  Eisenberg denied making such a statement, according to a footnote in the court’s opinion, but the court clearly believed he had something like this to Blackstone. 

Blackstone put the performance evaluation in his desk drawer because he was leaving on vacation the next morning.  At the airport the following day, he got a call from Captain Green who said that Fuller had filed a complaint against him for sexual harassment and hostile work environment. 

LAPD’s Reaction to Sexual Harassment Claim

The LAPD and the City of Los Angeles have a zero tolerance policy regarding sexual harassment. If such a claim is made, the employees involved are separated to minimize the potential for future claims and to allow the investigation to proceed.  The complaining employee is given the option of transferring, but Fuller did not want to transfer.  Assistant Chief Sandy Jo MacArthur advised that Fuller be allowed to remain and that Blackstone be transferred while the investigation proceeded. 

While on vacation, Blackstone received a call from Captain Roper, who advised him that he was being removed from the LAX Unit because of Fuller’s complaint.  Blackstone called Counterterrorism Bureau Chief John Miller and asked for permission to continue working on the OLD program. 

Eisenberg conducted an interview with Fuller, her attorney, and her union representative and prepared a personnel complaint that stated that Fuller was alleging “a hostile work environment and gender bias within the LAX bomb detection K9 unit.”  The form stated that evidence of this environment included material displayed on K9 office bulletin boards, misallocation of funds, and “inappropriate use and training of Transportation Security Administration (TSA) K9s.” 

When Blackstone returned from vacation, he was immediately sent to Washington, D.C., to give a presentation for the TSA on the OLD program.  When he returned to Los Angeles, he was told to stay away from the airport, though he was not given other instructions.  Some weeks later, he received a call that his request to keep working on the OLD program had been granted, but he was put on night watch while Fuller was left on day watch.  He could not go into the LAX Unit office unless Fuller was not there and, even then, he had to be accompanied by a particular officer, Lieutenant Mulrenin, who had taken over Blackstone’s office.  Blackstone began to find it difficult to perform his duties. 

Lieutenant Mulrenin did not take Fuller’s side, however.  Although he went to the unit to try to resolve issues, he once entered his office and found explosive material in it.  Fuller said she put the material there.  This may have been some sort of joke, but in some law enforcement environments an action like this could lead to immediate termination.  This alarmed Mulrenin and he rekeyed his office.  At this time, he also observed that Officer Teddy Gonzalez was afraid of Fuller.  He later testified that “some people are just very difficult to deal with.” 

Blackstone’s Problems Escalate

On March 22, 2005, Blackstone was conducting a training exercise at LAX.  One of the training aids, a simulated bomb, was not retrieved by the participants at the conclusion of the exercise.  When it was later found by an airport employee, the terminal was partially closed and the bomb squad was called.

According to the Los Angeles Times, the training aid was a computer bag filled with fuse-less pipe bombs.  Greg Krikorian and Jennifer Oldham of the Times reported that the incident began when an FBI agent assigned to LAX noticed the computer bag unattended outside the offices of several federal agencies.  He saw the bag was still there 30 minutes later and alerted airport police, but it took another 30 minutes to get a bomb dog to the location.  The dog hesitated when sniffing the bag but did not sit down, its form of alert.  When airport police opened the bag, they found six 6-inch pipes capped at the ends and evacuated everyone within 300 feet of the area.  John Miller, Chief of LAPD’s Counterterrorism Bureau, announced an investigation, but was quoted in the Times as saying:

“[T]his isn’t the first time something like this has happened in the course of training anywhere in the world.  Things have been left on planes and in other places, like public buildings.”   

Blackstone prepared a statement on the incident with suggestions as to how to prevent similar situations in the future.  He requested that the bomb squad conduct an audit.  During an audit eight days after the incident, the bomb squad reported that two chubs of explosive material were missing. Another Los Angeles Times article stated that the missing canisters contained one pound each of ammonium nitrate.  Police Chief Bratton was quoted as saying that it “is important that the protocols, practices and accountability systems of the unit are beyond reproach.” The Special Agent of the Bureau of Alcohol, Tobacco, Firearms and Explosives in charge of the Los Angeles Field Division, John A. Torres, also announced an investigation into the missing explosives.

On April 1, Captain Roper removed Blackstone from the LAX Unit and told him he would be transferred to the emergency services division.  Roper also told Blackstone that he would never work in a K9 unit again and that he was to stay out of the LAX Unit office.  The OLD program that Blackstone had begun was discontinued. 

During an interview with a department psychologist who was conducting an environmental audit of the LAX Unit, Blackstone said he “felt horrible.”  He was taken to an emergency clinic where he was diagnosed with hypertension and went on leave. 

Blackstone, Thiffault, and Mulrenin received Notices to Correct Deficiencies, generally called “paper penalties,” a light form of discipline that remains in an officer’s personnel file for six months.  Roper, at the direction of Commander Mark Leap, prepared a document recommending “deselecting and reassigning” of Blackstone.  Deselection involved a demotion.  The document stated that Blackstone had not provided “the necessary level of leadership and managerial oversight required.” His K9 partner, Boomer, was reassigned. 

Leap’s assessment of Blackstone was inconsistent with a TSA evaluation of the LAX unit conducted only two months earlier.  The National Explosives Detection Canine Team Program [NEDCTP] Comprehensive Assessment had stated:

“Overall, it was apparent that both the Los Angeles Police Department and Los Angeles World Airport Police Department are tremendous assets to the TSA National Explosives Detection Canine Team Program. The professionalism of these units was constantly displayed, and their dedication and commitment to the program was evident.”

In August, Blackstone was “loaned” to the Los Angeles Fire Department to train arson dogs in the OLD program.  He never finished that training assignment.  In November, he was reassigned to the Devonshire Patrol Division. He contacted Captain Roper, asking that he be allowed to work at LAX again.  Roper responded:

“The inv[estigation] is wrap[p]ing up, be patient. It is not in your best interest to be at the airport until the dust has finally cleared. I can't stop you from applying to work the regular [overtime] detail, through the substation cadre, but you need to think long and hard on this. Right now by being off the radar, you are not generating any new interest or attention. It is best that way.”

Roper also testified that someone close to the investigation “had it out” for Blackstone.  Fuller continued to make new allegations against Blackstone as well as other officers. 

In May 2006, an adjudication form concerning the March 2005 disappearance of explosive material stated that Blackstone had stored explosives in violation of LAPD policy.  Blackstone responded that there was no policy as to the storage of explosive material.  The Adjudication form was then changed to state “that between January 5, 2005, and March 30, 2005, an unknown Department employee inappropriately removed high explosives from a LAPD explosive storage magazine.”  The form recommended that the allegation be sustained and that Blackstone be suspended for four days.

On May 26, 2006, Michael Downing, Assistant Commanding Officer of the Counter-Terrorism and Criminal Investigation Bureau, requested that Blackstone be administratively transferred out of the LAX Unit.  Although disagreeing with this removal, Blackstone requested assignment to the Metropolitan Division K9 Unit in Hollywood.  Downing, in reviewing Blackstone’s file, noted that “in less than five weeks, [Blackstone] had gone from strong in every single category, with having developed a program that was viewed as the most progressive K9 program in the country, to being deselected completely out of the bomb K9.”  Nevertheless Downing was informed that Assistant Chief George Gascon had decided that when Downing was transferred, he was not going to get a position comparable in pay grade or authority to the one from which he was being removed.  Downing went along with the second demotion.  Blackstone was transferred to Van Nuys as a patrol supervisor. 

Blackstone Begins to Fight Back

Blackstone contested the four-day suspension for the missing explosive material.  A Board of Rights found Blackstone not guilty in November 2008.  It noted that Blackstone shared responsibility for the training aids with Mulrenin, Thiffault, and two other officers.  Chief William J. Bratton agreed with the Board and restored Blackstone to his highest level and pay grade, though it was soon determined that this restoration was in error.    

Captain Joel Justice, in January 2008, completed his adjudication of the sexual harassment and unbecoming allegations against Blackstone and sustained four allegations having to do with the Wall of Shame.  Captain Justice recommended a Board of Rights hearing and removal of Blackstone, though only a seven-day suspension of Thiffault and a five-day suspension of Officer Gonzalez. Before Justice reached his decision, Fuller filed a lawsuit for sexual harassment, asking for $4.7 million.   

Another Board of Rights hearing was held on the four sustained allegations involving the Wall of Shame.  In March 2009, Blackstone was again found not guilty.  The Board noted that the materials on the bulletin board were immature and problematic, but concluded that they did not rise to the level of misconduct.  It also noted that Fuller had herself asked people to post clippings on the Wall of Shame and that she had placed some there herself.  In the end, the Board determined that the Wall of Shame was actually favorable to morale.  Further, officers of higher rank than Blackstone had seen the Wall and done nothing.  Chief Bratton agreed with these findings as well, but did not restore Blackstone to his prior level and pay grade. 

Meanwhile, the City of Los Angeles settled the lawsuit Fuller had begun for $2.25 million and she remained in the LAX Unit until her retirement. 

Blackstone Sues

In May 2008, Blackstone sued, alleging gender discrimination and retaliation.  After a trial, the jury found that the City of Los Angeles and the LAPD had engaged in conduct that “substantially and materially adversely affected the terms, conditions, or privileges of [Blackstone’s] employment.” The jury awarded Blackstone $225,526 for past economic loss, $160,786 for future economic loss, and $350,000 for past noneconomic loss.  The City of Los Angeles appealed, contending that there was no substantial evidence that Blackstone engaged in protected activity or that an adverse employment action was motivated by retaliatory animus. 

The appellate court disagreed with the City and affirmed, and also awarded costs on the appeal to Blackstone. 

Conclusion

Blackstone was awarded $736,312, but much of that reflects loss of income from the experience of trying to maintain his honor in the face of a police establishment that was determined to make him the fall guy in the face of a relentless sexual discrimination attack from another employee. The nightmare lasted more than four years.  The amount he received was considerably less than the $2.25 million that his accuser received in a settlement.  The total cost to the City of Los Angeles from both suits, not including the costs of legal representation, exceeded $3 million. 

Blackstone was a fall guy, but not necessarily a saint.  He at least shared some responsibility for the poor monitoring of explosives materials used in canine training at LAX.  Permitting the Wall of Shame to continue was not his decision alone, but it must be wondered if it was doing more to the flames between the separate canine units than to reduce the tensions between them.  Such bulletin boards will almost inevitably include postings that will be offensive to one or more groups.

We have previously discussed the conflicts that can arise between TSA-supported airport programs and programs under the control of local law enforcement, and it is likely that some of the same issues were present in the underlying friction between the two groups at LAX.  These problems may very well still be present.  Although the OLD program was discontinued, LAX has more recently begun to participate in other TSA canine detection programs, so it may be argued, and must be hoped, that the period of these follies has passed.   

The tragedy of this case is not the personal loss that Blackstone suffered, but rather that these turf wars and personnel disputes were allowed to become more important than the security of the flying public at a major international airport.  A canine program with recognized promise was killed because of the fear that a lawsuit would make certain officials in the Los Angeles Police Department look bad.  Blackstone’s was not the head that should have rolled first, or necessarily at all, but there were supervisors here that were more concerned with image than with the dangers they are paid to protect us against. 

In an age of international terrorism, we cannot let office politics compromise anti-terrorism policy and practice. 

Blackstone v. City of Los Angeles, 2013 WL 1790676 (Cal.App. 2013).

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