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National Park Service Proposes New Service Animal Rules

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The National Park Service within the Department of the Interior is proposing to define service animals for purposes of specifying when they may be allowed in no-pet sections of national parks.The proposed rules follow the definitions and most of the general requirements of the Department of Justice in public accommodation regulations issued by that agency in 2010.  There have been some interesting refinements, such as allowing a park ranger to require the user of a service dog that is off leash to demonstrate the animal’s recall.  If a supposed service dog is causing difficulties with other visitors to a national park, or with wildlife in the park, the ranger can ask the user of the dog to articulate its function or even demonstrate its work or tasks.  Although there are some difficulties with the demonstration requirement as it might be applied to certain types of trained dogs, such as autism service dogs and medical alert/response dogs, the idea that a user should be able to demonstrate control over a supposed service animal is an important development. 

Department of the Interior, National Park Service, Areas of the National Park System; General Provisions, Resource Protection, Public Use and Recreation, Pets and Service Animals; Special Regulations of the National Park System, Olympic National Park, Isle Royale National Park, RIN 1024-AE06, 79 Fed. Reg. 21876 (April 18, 2014).   The Department of the Interior is seeking comments on its proposal, which should be submitted by June 17, 2014. Comments may be easily made on the proposal on the regulations.gov website.  The Department will undoubtedly value the opinions of service dog users who regularly visit national parks. 

National Park Service Covered by Rehab Act but Not by ADA

The reason for the proposal, according to the April 18 release in the Federal Register, is due the fact that the agency’s regulations on pets have remained unaltered since 1983 despite significant changes in the “federal statutes governing accessibility for persons with disabilities, as well as the use of service animals.”  In other words, it is time for the National Park Service and the Department of the Interior to catch up with other federal agencies that have considered the rights of users of service animals, most particularly the Department of Justice.  The preamble to the proposal states:

“Although the NPS is not governed by the ADA, NPS policy, as expressed in NPS Director’s Order #42, is to align its regulations with the ADA and make NPS facilities, programs, and services accessible to and usable by as many people as possible, including those with disabilities. It is also NPS policy to follow, as appropriate, the DOJ regulations that implement title II and III of the ADA.” 

Despite not being covered by the ADA, the Department accepted in interim guidance issued in 2002 that it was required to admit service animals under the Rehabilitation Act of 1973:

“After careful review of the issues related to the use of service animals in the national parks, and based on the advice provided by the Solicitor's Office, we conclude that we are legally required by Section 504 of the Rehabilitation Act to allow all types of service animals into the parks. The NPS will revise the regulations to adopt a broader interpretation of what a service animal is, and where service animals should be allowed. The NPS will use the same definition of service animal currently found in DOJ regulations (28 CFR36.104). Service animals will not be considered pets and, in general, when accompanying a person with a disability (as defined by Federal law and DOJ regulations), must be allowed wherever visitors or employees are allowed.”

The Department is to be commended, because unlike the Army and the Department of Veterans Affairs, which have given lip service to the ADA while issuing regulations and policies directly contrary to positions taken on the ADA by the Department of Justice, the Department of the Interior has appropriately adapted DOJ definitions for purposes of assuring that individuals with service animals can take maximum advantage of national parks. 

Current Rules on Pets and Guide Dogs

The National Park Service currently defines a pet as “a dog, cat or any animal that has been domesticated.” (36 CFR 1.4)  A series of restrictions apply to pets, including that possessing one “in a public building, public transportation vehicle, or location designated as a swimming beach, or any structure or area closed to the possession of pets by the superintendent” is prohibited. A “superintendent” is someone in charge of a park or an authorized representative of such an official. 

The particular prohibition on pets in a public building, etc., does “not apply to guide dogs accompanying visually impaired persons or hearing ear dogs accompanying hearing-impaired persons.”  (36 CFR 2.15(a)(1)) The phrase concerning guide dogs for the visual or hearing impaired was introduced in the regulations in 1983 (48 Fed. Reg. 30285, June 30, 1983), replacing a reference to “Seeing Eye dogs.” The original 1966 rule had stated:

“Pets are prohibited in public eating places, food stores and on designated swimming beaches at all times.  The Superintendent may also designate the posting of appropriate signs other portions of the park area where pets are not permitted.  This paragraph shall not apply to Seeing Eye dogs.”  (36 CFR 2.8, 31 Fed. Reg. 16652, December 29, 1966).  

This indicates that the burden was originally on a park superintendent to put up signs around a park where dogs were not to be allowed, but that if there were no sign, the pet owner could take the animal into the area.  The original rule also did not provide exceptions for excluding Seeing Eye dogs.  Guide dogs are also specifically mentioned in current rules regarding the Olympic National Park and the Jean Lafitte National Historical Park, where the prohibition of dogs and cats on park lands and trails does not apply to them.  (36 CFR 7.28(c); 36 CFR 7.37(c)). 

As already noted, however, the current regulations do not fully define national park policy as interim guidance issued in 2002 stated that service animals were to be allowed wherever visitors could go in national parks.  The guidance stated:

“[O]ur current regulation (36 CFR 2.15), which recognizes only guide dogs for the blind and signal dogs for the hearing impaired, is unenforceable against persons with disabilities who rely upon service animals for other purposes. Therefore, all park units must immediately expand the definition of service animals to be consistent with the DOJ definition and allow all service animals accompanying persons with disabilities the same privileges currently provided to guide dogs and hearing assistance dogs.”

Nevertheless, the Department wanted to give park superintendents authority to keep even service animals out of areas where their presence might be a risk to visitors or wildlife.  The interim guidance stated:

"[A] superintendent may close an area to all service animals upon an individualized assessment and a written determination that allowance of any domestic animal would pose a direct threat to the health and safety of people or wildlife. This determination must also follow the requirements of36 CFR 1.5/1.7. However, the legal burden is on the superintendent to justify closing an area of the park to service animals accompanying persons with disabilities.”

This is somewhat analogous to Arizona and California laws that allow exclusion of service dogs where they might come in direct contact with zoo animals.  (See Service and Therapy Dogs in American Society, pp. 48-9.)

Golden Access Passports

A special procedure was provided by the interim guidance for individuals seeking a Golden Access Passport, which is an access card “available to United States citizens of any age who have a disability that impairs any life function.”  The 2002 guidance stated:

“In some very limited situations the NPS may require additional procedures to verify that the animal is providing a service for a qualified person with a disability. The NPS already utilizes a procedure to determine if an individual is a qualified individual with a disability for purposes of receiving a Golden Access Passport. That procedure requires either written documentation of a disability or the signing of a statement attesting to having a disability as defined by Federal law. A similar procedure could be utilized with regard to service animals in cases where a superintendent believes it is necessary.”

Any documentation requirement regarding service animals would appear to be inconsistent with the rules now being proposed, as will be discussed further below.

Proposed Modification to National Park Service Rules

In prior rules that referred to Seeing Eye dogs (1966) and “guide dogs accompanying visually impaired persons or hearing ear dogs accompanying hearing-impaired persons” (1983), the terms for specialized dogs were considered self-explanatory and received no listing in the definitional section of the regulations (36 CFR 1.4).  Now, the Department of the Interior proposes to define a service animal as follows:

Service animal means any dog that has been individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition.”  (Proposed 36 CFR 1.4(a))

This follows (except for replacing “is” with “has been”) the definition of the Department of Justice in 28 CFR 35.104 and 28 CFR 36.104. The reference to mental disabilities establishes that the Department of the Interior is following the Department of Justice in recognizing that service animals include psychiatric service animals, though this term for a specific type of service dog is not used in the proposal.   As to the work or tasks of the animal, proposed 36 CFR 2.15(b)(1)(i) elaborates:

“The work or tasks the service animal is trained to perform must be directly related to the individual’s disability. In making this determination, an authorized person may observe the animal and ask if the animal is required because of a disability and what work or task the animal has been trained to perform. Authorized persons must not ask about the nature or extent of a person’s disability, nor may they require documentation of the disability or proof that the animal has been certified, trained, or licensed as a service animal.”

Specifically regarding access, proposed 36 CFR 2.15(b)(1) states:

“A service animal may accompany an individual with a disability in a park area where members of the public are allowed or may accompany an employee with a disability in a park area where employees are allowed.”

The latter clause indicates that the new access policy will apply in the workplace for an NPS employee.  

Emotional Support Animals Are Not Included

Like the Department of Justice, but unlike the Department of Transportation regarding air carrier access, emotional support is not an adequate status to get an animal into a national park:

“The crime-deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this provision.”

Again, this follows language in the DOJ definition of a service animal. (28 CFR 35.104) As already noted, a psychiatric service animal is a type of service animal—doing work or performing tasks specifically related to an individual’s mental disability—and is not precluded from entry as an emotional support animal.  Unlike the preamble to the DOJ regulations issued in 2010, however, which included numerous references to psychiatric service animals (75 Fed. Reg. 56267, 56268, 56269, 56271, 56272, September 15, 2010), the preamble to the national park service regulations makes no mention of psychiatric service animals.  Since employees of the National Park Service may not all find the time to read the original releases of the current DOJ regulations, it would be advisable for the Department, when it finalizes the regulations, to distinguish psychiatric service animals from emotional support animals.  This is a distinction that is often confusing to the public—and sometimes even to people who work with service and therapy animals—and there is no reason to expect that NPS employees will not be equally confused unless they are given clear guidance on the matter. 

Service Dogs in Training Do Not Qualify as Service Animals

Service animals in training are, according to the proposed rules, “regulated as pets,” and would thus not have access reserved for service animals. (Proposed 36 CFR 2.15(c))  While this might on occasion exclude an animal that is almost fully trained, it is probably intended to reduce false claims of service animal status.  This would also mean that a trainer of service animals should not consider bringing a service animal to a national park and expect to have the same rights as a person with a disability.  Of course, since there is no certification or training requirement, a service animal that is nearly fully trained should be under the user's control at a sufficient level to provide a demonstration of its function or its obedience level.  

Miniature Horses Sometimes Treated Identically to Service Animals

As did the Department of Justice in 2010, the Department of the Interior now acknowledges that some miniature horses are being trained as guide animals.  Consequently, the superintendent of a park “may allow the use of a miniature horse by an individual with a disability if the miniature horse has been trained to do work or perform tasks for the benefit of the individual with a disability and after observing and assessing the following factors:  (i) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (ii) Whether the handler has sufficient control of the miniature horse; (iii) Whether the miniature horse is housebroken; and (iv) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.”

Proof of Certification, Training, or Licensing

As quoted earlier, under 36 CFR 2.15(b)(1)(i) an NPS employee may not require proof that a dog "has been certified, trained, or licensed as a service animal." This language is taken from a provision in the Department of Justice regulations entitled "Inquiries" (28 CFR 36.302(c)(6)).  The Department of Justice elaborated on the reason for this language in the preamble to the final rule (75 Fed. Reg. 56272), stating:

"Certain commenters recommended the adoption of formal training requirements for service animals. The
Department has rejected this approach and will not impose any type of formal training requirements or certification process, but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources."

Nevertheless, neither the Department of Justice in its 2010 regulations nor the National Park Service in its current proposal preclude an authorized individual from examining certification, training, or licensing documents if they are proffered by the user of a service animal. This is appropriate, but a caution regarding the significance of such documentation is in order.  Although there are many legitimate training organizations that provide certification documents for dogs they train and sell, it is by now clear that many people are obtaining bogus documents for their pets, generally from websites that sell harnesses, badges, and laminated certification cards.  In 2010, when I was researching Service and Therapy Dogs in American Society, I generally found that bogus documents cost at least $100. A recent search indicates that they can now be obtained for as little as $25.

It is to be hoped that in issuing final regulations, the National Park Service will make mention of the limited value of certification documents in verifying actual service animal status. The National Park Service should also assure that in issuing Golden Access Passports, applicants are not using such bogus documentation to establish that their dogs are service animals. 

Leash or Harness for a Service Animal

Service animals are generally presumed to have to remain beside the person with the disability:

“A service animal must be controlled at all times with a harness, leash, or other tether, unless the
restraint device would interfere with the service animal’s safe, effective performance of work or tasks or the individual’s disability prevents using these devices. In those cases, the disabled individual must be able to recall the service animal to his or her side promptly using voice, signals, or other effective means of control. This must be demonstrated when requested by an authorized person.”  (36 CFR 2.15(b)(2))

This is a sensible regulation, and one that should be considered by the Department of Justice, which only specifies that a harness, leash, or other tether is not required if it “would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).”  (28 CFR 35.136(d)) The Department of the Interior’s reference to “recall” is in some ways superior to the DOJ’s wording since it requires that the dog follow a standard command that any animal with a minimal level of obedience training, and certainly a service dog, should instantly be able to demonstrate.  A demonstration that the dog can stay at the user’s side with a “heel” command could show even better that the dog will keep in an appropriate position when off leash.

The preamble also specifies:

“Service animals may not be left unattended, may not make unreasonable noise or exhibit aggressive behavior, and handlers must comply with excrement disposal conditions established by the superintendent. Service animals must be under control at all times while in the park.”  Again, this is a sensible perspective that should generally not present any problem to the user of a true service animal. 

Requirement to Remove an Uncontrolled or Unvaccinated Service Animal

As with the DOJ regulations, there are circumstances when an individual may be required to remove a service animal from a park area:

“An individual may be asked to remove a service animal from an area closed to pets if: (i) The animal is out of control and the animal’s handler does not take effective action to control it; (ii) The animal is not housebroken; or (iii) It is not readily apparent and the individual with a disability is unwilling or unable to articulate or demonstrate the work or task the animal has been trained to perform, consistent with paragraph (b)(1)(i) of this section.”  (proposed 36 CFR 2.15(b)(3)

This generally follows the DOJ requirements (28 CFR 36.136(b)) but, by adding a demonstration requirement, could present certain problems.  For instance, a medical alert or response dog, such as one that alerts and/or responds with tasks to seizures or low-blood-sugar conditions, may be trained to react to a chemical or behavioral change in the owner that the owner would be unable to replicate at will.  For such service animals, it might be preferable to have a somewhat broader requirement allowing the owner to demonstrate the dog’s ability at recall and perhaps one or two other obedience commands, which should make a description of what the dog does during a seizure or episode credible.  The same might be said of autism service dogs that work with children, who may be trained to interfere with certain behaviors of the child which the parents should not have to demonstrate. 

Owners may also be required to remove service animals from specific areas if they cannot provide proof of vaccinations.  (Proposed 36 CFR 2.15(b)(5))  This also is a sensible.  I do not know anyone with a service animal who does not make an effort to keep vaccination records in a wallet or purse.  The preamble states that vaccination records can include, but are not limited to, “rabies, distemper, parvovirus, and adenovirus, and proof of current treatment for intestinal parasites and heart worms.”  Similar proof may be required for miniature horses, which may also be required to show a “negative Coggins test for equine infectious anemia.”  For all these vaccinations and tests, the preamble states:

“An individual could demonstrate proof by showing a copy of a veterinarian bill for the required vaccines and treatments, a state-issued rabies tag, and/or a state health certificate, provided that the state vaccination requirements for the state health certificate mirror those established by the superintendent.”

Closing Areas to Service Animals

Superintendents of parks can make determinations to close areas to service animals for the health or safety of people or wildlife.  Such areas must, obviously, be also closed to pets.  In making such a determination, proposed 36 CFR 2.15(b)(5) states:

“In determining whether the use of service animals poses a threat under this paragraph, the superintendent must: (i) Make a written determination based on objective evidence evaluating the nature, probability, duration, and severity of the threat; and (ii) Explain in the written determination why less restrictive measures will not suffice.”

Conclusion

The National Park Service has clearly labored over the proposed rule changes, and is to be commended for adhering to the approach of the Department of Justice with regard to service animals.  The Service has attempted to provide national park employees with reasonable criteria by which they can distinguish true service animals from pets that aggressive owners want to claim as service animals.  The idea of allowing a demonstration of a response to a recall command for a service animal that is not tethered should be considered by the Department of Justice.  Nevertheless, the possibility of excluding a service animal because the owner cannot demonstrate the animal performing its function should be modified to take into account the fact that some service animals—seizure and hypoglycemia alert dogs, and some autism service dogs—may not be able to demonstrate what they do when the changes or actions of the owner, or the owner’s child, are not occurring at the moment the request for the demonstration is made. 

Thanks to Leigh Anne Novak and L.E. Papet for comments. 

Dramatic Research on Autism and Animals, but Changing Educational Policies WIll Require a Broader Consensus

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An increasing number of teams are conducting very well structured research on the effects of animals on children with autism.  Research findings that will be discussed here include that guinea pigs kept in classrooms increase the social behavior of children with autism spectrum disorders as well as the social behaviors of mainstream students towards their classmates with ASD.  The presence of the guinea pigs also reduces the amount of self-stimulating activity of the children with ASD, and lowers the time they spent crying and whining.  Another study found that when a pet arrives in the house of an autistic child between age five and six, the child will be more likely to share with others, and will be more concerned about others if they were sad or hurt, than if a pet is present in the household from the time the child is born, or if the household never gets a pet.  Thus, the timing of when a pet is obtained may sometimes matter in terms of its positive effects on a child.  Yet another paper finds that a commonly used therapy, the social story method, designed to develop social skills, may be more effective in the presence of a dog than without. 

Chloe, 2009 (courtesy Joan Ensminger)
These findings are impressive, and will provide directions for additional research, but two of the lead researchers in the teams involved in this work have written separate review papers detailing the problems with the current state of research: a prevalence of anecdotal accounts, lack of methodological consistency, small sample sizes, inadequate controls, imprecise diagnoses, potentially biased informants, non-blind behavioral observations, and other problems.  These issues mean that administrators still do not have an easy decision when considering whether to approve animal-related therapies, and lawyers cannot simplistically assume that the current state of research automatically supports legal arguments of clients who want to have service animals in classrooms or to have animals incorporated into educational or treatment programs. 

Guinea Pig Study

Studies of the effects of animals on children with autism might be divided by the species of animal involved.  Although most studies involve dogs, there have been significant lines of research involving horses, dolphins, and cats, some of which are listed in the bibliography at the end of this blog.  An Australian group headed by Marguerite O’Haire has been studying classrooms with guinea pigs intensively, and O’Haire, with and without her colleagues, published five papers on animals and autistic children in 2013 alone.

One of the 2013 studies (O’Haire, McKenzie, Beck, and Slaughter, 2013a) sought to compare interactions of autistic children with people when guinea pigs were near them with such interactions when there were toys in the classroom.  The researchers chose to contrast toys to animals because toys have been found to promote interaction among children with autism (Clifford, S., Hudry, K., Brown, L., et al., 2010). 

O'Haire, 2013a (courtesy PLoS ONE)
Almost 100 children were videotaped in 15 classrooms at four schools for ten-minute sessions with either toys or two guinea pigs. The researchers noted that prior studies generally did not offer the subjects of a study an alternative focus of attention from the animal in the experiment and none involved blind observers of behavior.  Children were between ages 5 and 13, had an autism spectrum disorder (ASD) diagnosis, with which the parents agreed, and had no prior parent-reported history of animal abuse.  The children were  in classrooms where other children did not have an ASD diagnosis.  All subjects were in mainstream schools in the greater Brisbane area. 

The guinea pigs lived in the classroom and were taken out twice a week for 20-minute sessions.  Same-sex pairs of guinea pigs were used to prevent breeding.  They were fed fruit, vegetables, and pellets, and had brushes for grooming and small-animal shampoo.  Fresh bedding was regularly supplied. 

Toys used in the study included two spinning tops with rip-cord launchers for use in a plastic battle arena, tow fashion dolls, two fashion design art kits for the dolls, erasable markers to draw on clothing, a restaurant set of 50 plastic pieces (food, cutlery, menu, serving trays, aprons, money), a set of 80 building bricks, two paddle-ball games, modeling material (Play-DohTM), bubble liquid and a blower, two toy cars, one slinky, and writing and drawing materials. 

O'Haire, 2013a (courtesy PLoS ONE)
The researchers determined that the children “talked more, looked more at human faces, and made more tactile contact with people in the presence of animals compared to toys.” The differences in social behaviors, categorized between verbal, visual, and physical behaviors, are indicated in the first graph above. In all three categories of behavior the presence of the guinea pigs was correlated with more social approach behaviors (as indicated by the dark bars) than was true when toys were present.

The effect was not just one involving the children with autism.  Non-ASD peers in the same classrooms displayed more social approach behaviors towards the children with ASD during more intervals per minute in the presence of animals compared to toys.  Thus, the benefits of the animals were not just in how the children with ASD behaved, but also in how the children without ASD behaved towards the children with ASD.  “When asked whether they preferred reading, toys, or the guinea pigs, 81.8% of children with ASD indicated that they preferred the guinea pigs, followed by toys (12.1%), or both (6.1%).”

Children with ASD also displayed more prosocial behaviors (activities intended to benefit either their peers or the adult) during more intervals per minute in the presence of animals compared to toys.  In contrast, in the presence of toys, they more often engaged in self-focused activities (play or self-stimulatory behaviors directed to themselves) in the presence of toys than when they were with the animals.  They also smiled and laughed more often in the presence of animals compared to toys.  In contrast, they demonstrated fewer instance of negative affecting, including frowning, crying, and whining, in the presence of animals compared to toys.  Finally, children with ASD “talked more about positive things (and less about negative things) in the presence of animals compared to toys.”  The second graph contrasts prosocial and problem behaviors (with the darker bar indicating the presence of the guinea pigs), clearly indicating a much better result in the presence of animals over toys.  The third graph compares emotional displays in the two situations. 

O'Haire, 2013a (courtesy PLoS ONE)
The researchers found their results were consistent across schools, classrooms, individuals, grade levels, whether the subjects owned pets or not, and test determinations of the degree of autism in the subjects.   They note that previous studies had reported increases in social behaviors during therapeutic sessions with animals, but their study “demonstrates that the presence of an animal alone, without concurrent therapeutic protocols, can increase social interaction.”  They note that the increased social approach behaviors of typically-developing children towards children with autism argues for the presence of animals in “inclusion” classrooms with both types of children. This is an important consideration as many schools will not have the resources to bring in both a therapy animal and a psychologist or other mental health professional to work with children with autism. 

Such benefits appear not to be confined only to classes that contain autistic children.  In another study, the same researchers (O’Haire et al., 2013b) compared a group of children who took part in animal-assisted activities (AAA) versus a control group on a waiting list.  They found that children who participated in the AAA program demonstrated significantly greater improvements in social functioning than their control group peers, as well as demonstrating greater decreases in problem behaviors.   There was, however, no significant difference between the groups in terms of academic competence, meaning that the benefits were in the social skills that the children displayed, not in academic test scores.   

The researchers note that half the teachers in the latter study adopted the guinea pigs following the program in order to maintain the benefits of having an animal in their classroom. Thus, the school apparently approved the guinea pigs continuing to be in the classrooms without the presence of the psychological testers.

Arrival of a Pet after Age Five

The scientific research on animals and children with autism could be categorized not only by the type of animal involved but, particularly with dogs, into the type of function the animal is fulfilling: pet, therapy animal, or service animal.  A French team headed by Marine Grandgeorge considered whether the arrival of a pet after a child with autism reached the age of five might lead to measurably different development from the child growing up with a pet from birth, or never having a pet at all.  Pets in the study were dogs, cats, and rabbits.  The study showed that autistic children who obtained a pet after their fifth birthday were more likely to share food or toys with parents or other children after the arrival of the pet than before.  After the arrival, they were more likely to reassure parents or peers who were sad or hurt.  This change occurred with both boys and girls.  It did not matter whether the parents acquired the animal for the child or for the family, indicating results were not influenced by parents’ expectations on the pet’s impact.  Changes in prosocial behaviors were not correlated with IQ scores, which “might imply that these changes were not related to the level of cognitive functioning.”

Such changes were not found in comparison groups of families that never had a pet or which had a pet from the time the child with autism was born. Also, autistic children were much more likely to play with a pet that arrived after age five than autistic children in families that had always had pets.  About half the parents reported that children who got a pet after age five took care of it, whereas none of the children in families that always had pets did so.  In sum, “the individual-pet interactions (i.e. bonding) were more—qualitatively and quantitatively—reported in the case of pet arrival than pet presence since birth.”  This may be due to the fact pets in families that always had them may “have formed a preferential bond with another member of the family and therefore been less demanding on the individual with autism.”  The researchers also suggest that another “non-exclusive possibility is that the arrival of a pet strengthens the cohesion of the family and increases the levels of interactions between their members.”  Thus, the arrival of the pet may change a family dynamic. 

Thus, my own intuition that it would be best to bring in a pet as early as possible for a child with autism may not be correct, and it may be better to wait.  Of course, introducing a pet at different ages than five should also be examined to determine if such results remain consistent. 

Combining a Therapy Dog with the Social Story Method

Two autism researchers in Romania, Andreea A. Grigore and Alina S. Rusu (2014), sought to determine whether the presence of a therapy dog might improve the effectiveness of a specific behavioral intervention designed to improve the social abilities of autistic children.  This behavioral intervention used in the study is the “social story method,” which involved a therapist saying something like:

I have a new story for you. Let us read it! It is a story about how to greet someone. I will read the story, and then I will ask you some questions.

The following story was told to a boy named Nicu. 

People greet each other when they meet people they already know.

Whenever I meet a person I already know, that person might smile to me and say: “Hello, Nicu.”

I should smile, too, and reply to her: “Hello.”

She might stop and talk to me.

The social story is designed to target a specific social skill or behavior expected for a specific social situation.  Social stories have been found to reduce behaviors in ASD children such as aggression, screaming, grabbing toys, and crying.  Behaviors such as greeting, sharing toys, playful behavior, and other positive social interactions have been found to increase with the use of social stories. 

In order to use the Social Story method with a child, it has been recommended that the child be able to recognize basic facial expression and demonstrate an interest in books.  The study involved two boys, Nicu and Catalin, and a girl, Georgia, all seven or eight years old and with IQs between 85 and 115.

For Catalin, appropriate social interactions increased when the Social Story was given with the therapy dog, decreased afterward when the dog was not present in a session, but increased again when the dog returned.  For Catalin, far less prompting was needed when the dog was present, decreased after the dog was not present, and increased again when the dog returned.  For Nicu, no statistical significance was found to distinguish the amount of prompting needed with and without the dog.  For Georgia, the level of prompting needed was lowest with the dog present.  As to initiation of social interactions, the presence of the dog increased the frequency of such initiations for all three children. 

The researchers acknowledge that their study involved a small sample size, but conclude that their “results suggest that the presence of a dog while reading a social story can bring important social improvements by increasing the frequency of social initiations and by decreasing the level of social prompt that the autistic children usually need to perform appropriate social interactions.”

Again, the presence of an animal seems to improve social interaction of a child with autism, but in this study there are indications that the presence of the animal can also make other therapies more effective. 

Review Papers Push for Greater Precision and Consistency in Research  

The call for greater rigor in the scientific analysis of therapies involving animals with autistic children has been discussed before in this blog (Berry et al., 2013); Marcus, 2013).  Marguerite O’Haire, the leader of the guinea pig research team discussed above, has written a review paper that sought to “systematically identify, summarize, and evaluate any existing empirical studies of AAI [animal-assisted intervention] for ASD in order to document currently researched AAI practices and their reported findings, as well as to provide directions for further, more rigorous research.”  The analysis excluded studies in which ASD was only one of several categories from which participants were taken and results were not separated for ASD participants.  In the end, only 14 studies met all inclusion criteria, and 11 of these 14 were published since 2008.  She noted that sample sizes were generally small, mostly under 12 subjects, and often indicated little about ASD severity.  Few studies reported whether concurrent treatments were being used at the same time as the animal interventions.  No studies of adults with ASD were described.  About 80% of subjects in studies analyzed were boys.  Many studies lacked controls beyond “simple pre-post designs,” meaning that factors other than the animal might sometimes be involved in measured differences.   Very few studies collected any data at a follow-up point, meaning that there was little information on the long-term effects of animal-assisted intervention studies.  There were other problems with the surveyed research:

“Only two studies used blind raters of behavior and only one study collected physiological data. Advancing the research base on AAI for ASD will require blind ratings of participant behavior and further physiological assessment in order to reduce the likelihood of expectancy biases and lead to greater confidence in genuine treatment outcomes. Additionally, no two studies in the current review used the same standardized assessment tool, which limited cross-study comparisons.”

O’Haire raises an issue with funding, and perhaps legal, implications:

“[I]f extensive training is unnecessary for positive treatment outcomes, AAI may provide a feasible and inexpensive option for parents and teachers to present to individuals with ASD. Or, if formal certification is necessary for or enhances positive treatment outcomes, this information should dictate  interventionist selection and standards.”

Increased social interaction was reported in 9 of 14 studies, all finding this increased in the presence of an animal compared to no animal.  Five studies reported increased communication and use of language as a result of AAI for ASD.  One study suggested to O’Haire that individuals with ASD in AAI “may display greater interest in speaking about animals than other objects, but not necessarily a greater overall propensity for speaking.”  It is possible that increased language and communication may occur during and immediately following AAI, but long-term benefits may not be established. Some studies suggested AAI may reduce ASD “for certain individuals.”  Three studies reported decrease in problem behaviors associated with AAI, but O’Haire cautioned that this only amounted to “preliminary evidence.”  There is also some evidence that “AAI may be related to reduced stress and increased well-being through enhanced mood, motivation, and energy.” 

Marine Grandgeorge and Martine Hausberger, who were both co-authors on the age-five pet arrival paper, have written a review paper arguing that the experimental data on the effect of animals in the development of social skills in children is “indeed a promising line,” but argue that there is “a lack of clear scientific data that would help define what the most appropriate procedures or species may be.”  These authors conclude:

“[T]here are a lack of clear scientific data and strong needs for proper scientific researches. Further studies are needed that would be based on adapted observational and experimental approaches on larger samples of patients. Only precise and quantified descriptions both of the interactions and the outcomes may help evaluate the real impact and understand the process involved. Long term studies, such as researches about human-pet at home, may bring robust results about potential profound and durable improvements.”

Thus O’Haire and Grandgeorge, as did Berry, Marcus, and Nimer and Lundahl (2007), express optimism, but accept that definitive conclusions, particularly conclusions that can shape long-term and broad-scale policies with respect to children with autism, are still not present, despite the increasing number of studies. 

Policy and Legal Implications 

There have been studies of pets in home environments of children with autism, such as Grandgeorge’s study of pets arriving when autistic children are five-year-olds, as well as the presence of classroom pets, as described by O’Haire’s guinea pigs. Having guinea pigs in the classroom would often be classified as an animal-assisted activity, where the children were able to touch the animals on occasion.  Many of the teachers in the classrooms where the guinea pig studies were conducted sought to keep the animals at the end of the study in order to continue the benefits they provided.  This is telling, and makes a good policy argument that schools should consider having such easily maintained pets in the classroom.  Even without outside scientific support, it would be possible for the school to watch test results administered by school psychologists to see if measurable differences can be noted. Results such as O’Haire’s are insufficient to argue that policy changes must be made, but a school’s administration might be wise to consider placing a few guinea pigs in some classrooms of teachers who are interested. 

Chloe, 2009 (courtesy Joan Ensminger)
As to the incorporation of animals into therapies and educational activities, the research continues to demonstrate benefits, though it is often not clear whether such benefits endure after the animals are taken away.  With service animals it should not be expected that they are with children to have curative effects (blind children are not cured by guide dogs, nor should it be expected that children with autism will be cured by autism service dogs that are trained to interrupt dangerous behaviors), but with animal-related therapies and activities, there is an appropriate concern that the influence of the animals is temporary and that the improvements noted might disappear when the animals are no longer present or after the children have gotten bored with them. As Grandgeorge et al. (2011) noted, it “remains to be shown whether these effects are durable (beyond the sessions) and may be extended to other situations (child-pet at home).”

Still, there are other factors to consider, such as the increased calmness in classrooms when activities involving animals are occurring, the increased socialization exhibited by students with autism during such activities, the ability of non-autistic students to more easily communicate with the ASD students during the activities, reductions in tantrums and other disruptive behaviors, and so forth.  The fact that academic improvement may not occur simultaneously with such changes is important to consider, particularly when balanced against the problems arising from having to care for an animal or animals, concerns about the health of the animals, the need to care for the animals at night, on weekends, and during vacations, and other logistical issues.   

Service animals were not considered in the studies discussed above (but see Burrows et al., 2008, and Viau et al., 2012, discussed in a prior blog) and the research in this area is weaker than is the case with pets in families or animals in activities and therapies in schools.  This is largely because many schools will have only one or two service animals, usually dogs, coming to the school, and methodological consistency would generally be impossible in any large-scale study of service animals in classrooms given the high number of variables inevitable in gathering data from different schools and different classroom environments. 

The regulations of the U.S. Department of Education, in a provision regarding federal assistance to states for the education of children with disabilities, provide for the use of a “long cane or a service animal to supplement visual travel skills or as a tool for safely negotiating the environment for children with no available travel vision.”  (30 CFR 300.34(c)(7)(ii)(B))  This, however, only applies to a guide dog for purposes of travel.  Nevertheless, as discussed several times before in this blog, there have been cases on the rights of children to have other kinds of service dogs accompany them to schools.  It has been argued (Wieselthier, 2011) that the federal educational code should be revised to list service animals as a “related service” so that they could be considered in the development of individualized educational programs for students with disabilities. While I think this is a good argument, the state of the research on the value of service animals is not yet strong enough to get the support of some in the educational community who are likely to become involved should any legislative, or even regulatory change, of this sort be initiated.   

Conclusion
  
In 2006, Katherine Kruger and James A. Serpell described animal-assisted interventions as a “category of promising complementary practices that are still struggling to demonstrate their efficacy and validity.”  That is still true, but the science has advanced and will continue to advance.  The calls of O’Haire, Grandgeorge, and others for increased rigor and methodological consistency in studies involving animals in educational programs for children with disabilities are leading to better research designs, and to findings that can be demonstrated as comparable across different school environments and even countries. 

In the end, I think that many school districts will make decisions based not so much on an administration’s consideration of the research, but rather on the predisposition of a controlling set of administrators concerning the idea of dogs or other animals coming into the schools they control.  More simply, or perhaps simplistically, this often depends on whether the administration is made up of “dog people” or not. Those who have a knee-jerk reaction that having a dog or guinea pig in a classroom somehow makes the school less educational, less clean, less controlled, less presentable—whatever—will resist suggestions about animal activities and interventions, and even service animals, where others will not. This has been true in some of the legal cases regarding service animals in schools, where certain administrators have objected despite any offers of scientific evidence or the legal status of service dogs.  Even more broadly, I find that such human dynamics are often at play, such as when a person with a service dog has no problem with one restaurant, while the owner of another restaurant down the street immediately begins to throw up roadblocks. 

The psychological and educational value of interactions with animals for children with autism will continue to be a focus of scientific research.  Once the research begins to settle on procedures and approaches, policy will follow and the law will take care of itself.  

Thanks to Dr. J. Lawrence Thomas, Leigh Anne Novak, and L.E. Papet for corrections and suggestions. Thanks to Maggie O'Haire for telling me about the wonderful website on human-animal interaction research she maintains with Samantha McKenzie and Virginia Slaughter, which includes links to important developments in this area.        

Bibliography (with Notes) of Scientific and Legal Sources on Animals and Autism

Adams, Naomi (2009). Animal Assisted Interventions for Adolescents with Emotional and Behavioural Problems: A Review of Selected Literature. Paper for Postgraduate Diploma, Monash University.  (“[T]he majority of studies have been anecdotal, or in the form of hypothesis-generating case studies, rather than hypothesis-testing empirical studies…. [E]mpirical research is required to test whether the benefits of animal assisted interventions on a small number of individuals can be generalised to larger populations. There is also often no clear distinction between animal assisted therapy and animal assisted activity modalities, making it difficult to determine the effects of the animal's presence and the effect of the animal as a 'co-therapist', or a living „tool‟ in a therapeutic intervention.”)

Alison, Courtney E. (2010). Using Dogs in a Home-Based Intervention with Children with Autism Spectrum Disorders.  Ph.D. Thesis, Texas A&M University.  This thesis contains a particularly good summary of prior literature.  (“The participants in the current study also showed decreases in Looking at Environment and Solitary Activity when a dog was present. Taken with the increase in eye contact, the decrease in directing their gazes away from others suggests more social visual attention. Thus, the decrease in solitary activity also evidences an increase in social interaction. These results are consistent with others’ findings that dogs served to increase positive social interactions between children with autism and adults and dogs.”).

Anderson, Katherine L., and Olson, Myrna R. (2006).  The Value of a Dog in a Classroom of Children with Severe Emotional Disorders.  Anthrozoos, 19(1), 35-49 (Qualitative analysis indicated that a dog's placement in a classroom of children with severe emotional disorders contributed to students' overall emotional stability evidenced by prevention and de-escalation of episodes of emotional crisis, improved students' attitudes toward school, and facilitated students' learning lessons in responsibility, respect and empathy.)

Berget, Bente, Ekeberg, Oivind, and Braastad, Bjarne O. (2008). Animal-Assisted Therapy with Farm Animals for Persons with Psychiatric Disorders: Effects on Self-Efficacy, Coping Ability and Quality of Life, a Randomized Controlled Trial.  Clinical Practice and Epidemiology in Mental Health, 4(9).  DOI: 10.1186/1745-0179-4 (“AAT with farm animals may have positive influences on self-efficacy and coping ability among psychiatric patients with long lasting psychiatric symptoms.”).

Berry, Alessandra, Borgi, Marta, Francia, Nadia, Alleva, Enrico, and Cirulli, Francesca (2013).  Use of Assistance and Therapy Dogs for Children with Autism Spectrum Disorders: A Critical Review of the Current Evidence.  The Journal of Alternative and Complementary Medicine, 19(2), 73-80    (discussed in detail in prior blog).

Bodmer, N.M. (1998). Impact of Pet Ownership on the Well-Being of Adolescents with Few Familial Resources. In Companion Animals in Human Health. Wilson, C.C. and Turner, T.C. (eds.) 237-247. Sage Publications, Thousand Oaks, CA: Sage Publications.

Breitenbach, E., Stumpft, E., Fersen, L. V., and Ebert, H. (2009). Dolphin-Assisted Therapy: Chainges in Interaction between Children with Severe Disabilities and Their Caregivers.  Anthrozoös, 22(3), 277-289. DOI: 10.2752/175303709x457612  .

Burrows, K.E. and Adams, C.L. (2008) Challenges of Service-Dog Ownership for Families with Austistic Children: Lessons for Veterinary Practitioners.  Journal of Veterinary Medical Education, 35, 559–566 (discussed in a prior blog).

Burrows, K.E., Adams C.L, and Spiers, J. (2008). Sentinels of Safety: Service Dogs Ensure Safety and Enhance Freedom and Well-Being for Families with Autistic Children.  Qualitative Health Research, 18(12), 1642–1649.

Carlisle, Gretchen K. (2012).  Pet Dog Ownership in Families of Children with Autism: Children’s Social Skills and Attachment to Their Dogs.  Ph.D. Thesis, University of Missouri-Columbia. (Carlisle tested two hypotheses: (1) children with ASD who live in a family with a pet dog will have greater social skills than those who do not live with a dog; (2) children with ASD who are very attached to the family’s pet dog will have more social skills than children who are not very attached.  Both hypotheses were rejected on the data collected.  Nevertheless, the doctoral thesis contained some interesting results:  “The present study found that the longer a family owned a dog the greater the SS and fewer the related PB for their children, after controlling for age of the child…. The longer a family owned a dog, the stronger the child with ASD perceived their relationship to the dog.”)

Carlisle, Gretchen K. (2014).  Pet Dog Ownership Decisions for Parents of Children with Autism Spectrum Disorder.  Journal of Pediatric Nursing, 29(2), 114-123.  

Celani, G. (2002).  Human Beings, Animals and Inanimate Objects: What Do People with Autism Like?  Autism, 6(1), 93-102. 

Christon, Lillian M., Mackintosh, Virginia H., and Myers, Barbara J. (2010). Use of Complementary and Alternative Medicine (CAM) Treatments by Parents of Children with Autism Spectrum Disorders.  Research in Autism Spectrum Disorders, 4, 249-259 (online survey of 248 parents of children with ASD found 23.8% of their children had participated in AAI, and 62.7% of those parents saw improvements from the use of AAI). 

Clifford, S., Hudry, K., Brown, L., Pasco, G., Charman, T., and PACT Consortium (2010).  The Modified-Classroom Observation Schedule to Measure Intentional Communication (M-COSMIC): Evidence for Reliability and Validity.  Research in Autism Spectrum Disorders, 4, 509-525. 

Cohen, Matthew (2009). A Guide to Special Education Advocacy: What Parents, Clinicians and Advocates Need to Know.  London: Jessica Kingsley Publishers.

Condoret, A. (1983). Speech and Companion Animals: Experience with Normal and Disturbed Nursery School Children. In Katcher, A.H., and Beck, A. M. (eds.), New Perspective on Our Lives with Companion Animals, 467-471. Philadelphia: University of Pennsylvania Press (“The display of emotion which is evoked by the presence of an animal can be considered as a facilitator of speech acquisition. The desire to communicate with animals appears to be one of the motives for acquiring language. There is, at this level, an ambiguity, even a paradox, which should be clarified: the animal, who does not speak, allows the child to speak.”).

Davis, B.W., Nattrass, K., O’Brien, S., Patronek, G., and MacCollin, M. (2004). Assistance Dog Placement in the Pediatric Population: Benefits, Risks, and Recommendations for Future Application.  Anthrozoos, 17(2), 130-145 (“Our study used interviews to evaluate the outcome of placing assistance dogs in the pediatric population, looking specifically at the unique advantages and disadvantages of this application of the human–animal bond. We administered a structured interview assessing risks and benefits of assistance dog relationships to 17 families with a child under 18 years who graduated from a single provider (NEADS) over a five-year time period. Benefits were found in 88% of families, and were overwhelmingly social and cognitive, with additional physical and medical benefits for the pediatric client. However, risks, including behavioral, financial, and time/cost issues were significant, becoming a burden in 53% of families. Perhaps more than with adult placements, we found that it was of prime importance to understand the assistance animal in the context of the family, rather than just in relation to the individual with a disability.”).

Endenburg, Nienke, and van Lith, Hein A. (2011).  The Influence of Animals on the Development of Children.  The Veterinary Journal, 190, 208-214.

Ensminger, John (2010). Service and Therapy Dogs in American Society: Science, Law and the Evolution of Canine Caregivers.  Springfield, Ill.: Charles C. Thomas (discussing at 93 et seq. research on physiological effects of dogs on humans).

Esposito, Layla, McCune, Sandra, Griffin, James A., and Maholmes, Valerie (2011).  Directions in Human-Animal Interaction Research: Child Development, Health and Therapeutic Interventions.  Child Development Perspectives, 5(3), 205-2011.  DOI: 10.1111/j.1750-8606.2011.00175.x (reviews “key themes” from two international conferences on human-animal interaction research). 

Esteves, S. W., and Stokes, T. (2008). Social Effects of a Dog’s Presence on Children with Disabilities. Anthrozoös, 21(1), 5-15. doi: 10.2752/089279308X274029 (The effects of the presence of a dog on social interactions between three 5-9-year-old children with developmental disabilities and their teacher at an elementary school were analyzed.  All participants demonstrated an increase in overall positive initiated behaviors (verbal and non-verbal) toward both the teacher and the dog. The children also showed an overall decrease in negative initiated behaviors. In addition, observational ratings showed positive generalization of improved social responsiveness by the children in their classroom following the completion of the experimental sessions. This study supports the position that children with developmental disabilities benefit from the use of skilled dogs as teaching assistants and therapeutic adjuncts.).

Filiâtre, J. C., Millot, J. L., Montagner, H., Eckerlin, A., & Gagnon, A. C. (1986). Advances in the Study of the Relationship between Children and Their Pet Dogs. Anthrozoös, 21(1), 22-32.  DOI: 10.2752/089279389787058190.

Friesen, L. (2010). Exploring Animal-Assisted Programs with Children in School and Therapeutic Contexts. Early Childhood Education Journal, 37(4), 261–267.

Gallo-Lopez, Loretta, and Rubin, Lawrence C. (2012).  Play-Based Interventions for Children and Adolescents with Autism Spectrum Disorders.  New York, NY: Taylor & Francis/Routledge (unique in containing discussions of dog training for work with autistic children).

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Gee, N. R., Church, M. T., and Altobelli, C. L. (2010). Preschoolers Make Fewer Errors on an Object Categorization Task in the Presence of a Dog. Anthrozoös 23(3): 223–230 (“[T]he presence of the real dog does not appear to alter typical performance patterns seen in object categorization, but the fact that fewer errors were made in the presence of the dog indicates that the presence of the dog does have a positive impact on performance of this cognitive task.”).

Gee, Nancy R., Gould, Jared K., Swanson, Chad C., and Wagner, Ashley K. (2012).  Preschoolers Categorize Animate Objects Better in the Presence of a Dog.  Anthrozoos, 25(2), 187-198 (finding evidence that the presence of a real dog has an impact on cognitive task performance). 

Gervais, Helene, Belin, Pascal, Boddaert, Natalie, Leboyer, Marion, Coez, Arnaud, Sfaello, Ignacio, Barthelemy, Catherine, Brunelle, Francis, Samson, Yves, and Zilbovicius, Monica (2004). Abnormal Cortical Voice Processing in Autism. Nature Neuroscience, 7(8), 801-2 (“[I]ndividuals with autism may be unable to process voice stimuli using the selective mechanisms activated by vocal sounds in normal controls. This is consistent with behavioral studies showing abnormal voice perception in autism as well as with findings relating to event-related potentials in children with autism that show a selective impairment in the attention to vocal-speech sounds. One possible interpretation of these results is that autistic individuals could be characterized by an attentional bias towards non-vocal sounds, in line with recent findings of enhanced sensitivity to pitch in individuals with autism.”).

Ghorban, H., Sedigheh, R.D., Marzieh, G., and Yabhoob, G. (2013).  Effectiveness of Therapeutic Horseback Riding on Social Skills of Children with Autism Spectrum Disorder in Shiraz, Iran.  Journal of Education and Learning, 2(3).  DOI:10.5539/jel.v2n3p79 

Grandgeorge, Marine, and Hausberger, Martine (2011).  Human-Animal Relationships: from Daily Life to Animal-Assisted Therapies.  Annali dell’Istituto Superiore di Sanita, 47(4), 397-408. DOI: 10.4415/Ann_11_04_12.(“The finding that the primary auditory area is shaped by social bonding sheds a new light on Gervais et al.’s results showing a deficit in voice processing in the brain of autistic patients: is this perceptual disorder a source or a consequence of social withdrawal? Where this questioning is especially interesting in the current review is that if bonding occurs between a patient and an animal, one may wonder whether this new stimulation will not trigger brain plasticity (as observed in the other direction when animals develop new skills as a result of their privileged relationship with humans). Brain plasticity is much larger than long thought and while the predominant view has been that brain controls our behaviours, and it is true that brain disorders lead to behavioural disorders, experimental evidence increases that shows the huge impact of environmental (in particular social) factors on cognitive development and repair…. According to Prothmann et al. [121], animals − especially dogs − communicate their intentions in a more comprehensible way than human beings for children with autism (as previously hypothesized [94]) while autistic patients may be more sensitive to animals than human signals [126] which may explain the observed improvement. It remains to be shown whether these effects are durable (beyond the sessions) and may be extended to other situations (child-pet at home).”)

Grandgeorge, Marine, Tordjman, Sylvie, Lazartigues, Alain, Lemonnier, E., Deleau, Michel, and Hausberger, Martine (2012). Does Pet Arrival Trigger Prosocial Behaviors in Individuals with Autism? PLoS ONE, 7(8), e41739.

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Heimlich, K., Schiro-Geist, C., & Broadbent, E. (2003). Animal-Assisted Therapy and the Child with Severe Disabilities: A Case Study. Rehabilitation Professional, 11(2), 41-53.

Hergovich, Andreas, Monshi, Bardis, Semmler, Gabriele, and Zieglmayer, Verona (2002). The Effects of the Presence of a Dog in the Classroom, Anthrozoos, 15(1), 37-50 (Subjects were 46 first-graders in two school classes (control and experimental). In the experimental group, a dog was present in the classroom for three months. Multivariate analyses revealed significant enhancement of field independence and empathy with animals in the experimental group in comparison to the control group (no dog). Thus, the presence of the dog fostered the development of autonomous functioning and a better segregation of self/non-self, which is the foundation of sensitivity towards the needs and moods of other people. Moreover, according to the views of the teachers, the children in the experimental group exhibited higher social integration, and there were fewer aggressive children, compared with the children in the control group.)

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O’Haire, Marguerite E., McKenzie, Samantha J., McCune, Sandra, and Slaughter, Virginia (2013b). Effects of Animal-Assisted Activities with Guinea Pigs in the Primary School Classroom.  Anthrozoos, 26(3), 445-458 (“Children who participated in the AAA program demonstrated significantly greater improvements in social functioning than their control group peers, as defined by greater increases in social skills (teacher SSRS) and decreases in problem behaviors (parent and teacher SSRS). There were no significant differences between the groups in academic competence. AAA participants demonstrated significant increases in social skills and decreases in problem behaviors from pre- to post-program on the teacher version of the SSRS [Social Skills Rating System]. Control group participants did not show significant changes on these measures.”).

O’Haire, Marguerite E., McKenzie, Samantha J., Beck, Alan M., Slaughter, Virginia (2013c). Social Behaviors Increase in Children with Autism in the Presence of Animals Compared to Toys.  PLoS One, 8(2), e67010. DOI: 10.1371/journal.pone.0057010.

O’Haire. Marguerite E. (2013d).  Review of Current Evidence and Future Directions in Animal-Assisted Intervention for Children with Autism.  OA Autism, 2013 Mar 10;1(1):6.

O’Haire, Marguerite E. O’Haire (2013e).  Animal-Assisted Intervention for Autism Spectrum Disorder: A Systematic Literature Review.  Journal of Autism and Developmental Disorders, 43(7), 1606-1622. 

Philippe, S. (1995). Animal-Assisted Therapy (Educational and Psychological Aspects) with Dogs for Psychotic and Autistic Children. Presentation, 7th International Conference on Human-Animal Interactions, Geneva.

Pavlides, Merope (2008).  Animal-Assisted Interventions for Individuals with Autism.  London: Jessica Kingsley Publishers. 

Peacock, J., Chur-Hansen, A., and Winefield, H. (2012). Mental Health Implications of Human Attachment to Companion Animals. Journal of Clinical Psychology, 68(3), 292-303 (March 2012) (discussed in a prior blog).

Poresky, R.H. (1996). Companion Animals and Other Factors Affecting Young Children’s Development. Anthrozoos, 9, 159–168 (reviewing both companion animal and therapy animal research). 

Prothmann, A., Albrecht, K., Dietrich, S., Hornfeck, U., Stieber, S., and Ettrich, C. (2005). Analysis of Child-Dog Play Behavior in Child Psychiatry.  Anthrozoos, 22(2), 161-171. 

Prothmann, A., Ettrich, C., and Prothmann, S. (2010). Preference for, and Responsiveness
to, People, Dogs and Objects in Children with Autism. Anthrozoos, 22, 161–171  (When given a choice between interacting with a dog, an adult, or inanimate objects, children with autism chose to interact with the dog twice as often as with the adult and 16 times as often as the objects.  The children interacted with the dog four times as long as with an adult.).

Redefer, L. A., and Goodman, J. F. (1989). Pet-Facilitated Therapy with Autistic Children. Journal of Autism and Developmental Disorders., 19(3), 461-467. DOI: 10.1007/BF02212943.

Sams, M. J., Fortney, E. V., & Willenbring, S. (2006). Occupational Therapy Incorporating Animals for Children with Autism: A Pilot Investigation. American Journal of Occupational Therapy., 60(3), 268-274 (Results suggest that the children demonstratedsignificantly greater use of language and significantly greater social interaction in sessions incorporating animals when compared to sessions using exclusively standard occupational therapy techniques.  This study was discussed in a previous blog).

Schoenbaechler, Danny (2010).  Autism, Schools, and Service Animals: What Must and Should Be Done.  Journal of Law and Education, 39, 455. (“School administrators should proactively find ways to accommodate a service animal request. When a request is made, administrators should give strong deference to the decision of the parents and try to accept the animal in school unless the there is a serious imbalance to the cost-benefit analysis.”).

Serpell, J.A., Coppinger, R., Fine, H.A. (2006). Welfare Considerations in Therapy and Assistance Animals. In Fine, H.A. (ed.), Handbook on Animal-assisted Therapy (2nd ed.), 453-474. San Diego: Academic Press (“Animal Assisted Intervention has encountered growing popularity in the absence of a systematic assessment of the potential threats to the welfare of the animals.”).

Silva, K., Correia, R., Lima, M., Magalhaes, A., and de Sousa, L. (2011). Can Dogs Prime Autistic Children for Therapy? Evidence from a Single Case Stuy.  Journal of Alternative and Complementary Medicine, 17, 655–659.

Solomon, Olga (2010).  What a Dog Can Do: Children with Autism and Therapy Dogs in Social Interaction.  Ethos: Journal of the Society for Psychological Anthropology, 38(1), 143-166 (DOI: 10.1111/j.1548-1352.2009.01085.x) (providing exceptionally well-written narratives of how children interact with therapy and service dogs).

Solomon, Olga (2012).  Doing, Being and Becoming: The Sociality of Children with Autism in Activities with Therapy Dogs and Other People. Cambridge Anthropology, 30(1), 109-126.  (“In both examples
of children with ASD engaged with therapy dogs, there is an identifiable dialectical process underway in which the activity on the way (doing) and the emerging relationship with the dogs and, through the dogs, with the people (being), produces new horizons of possibility (becoming) which in turn informs the practices of sociality between the children and the other people in their lives, even aft er the therapy dogs have gone.” Also: “It may be that animal-assisted therapy interactions make visible the potentiality of some children with autism to have a heightened social, affiliative response to animals, and if this is so then the myths and the historical accounts converge in these interactions to reveal something about autism that has not been known before: namely, that like in the myths and fairytales, animals matter in important ways in how these children’s lives will unfold and what will become of them in their lifeworlds.”)

Sterba, J. A. (2007). Does Horseback Riding Therapy or Therapist-Directed Hippotherapy Rehabilitate Children with Cerebral Palsy? Developmental Medicine and Child Neurology, 49(1), 68-73.  

Tissen, Isabelle, Hergovich, Andreas, and Spiel, Christiane (2007). School-Based Social Training with and without Dogs: Evaluation of Their Effectiveness.  Anthrozoos, 20(4), 365-373.

Udelle, M., and Wynne, C. (2008). A Review of Domestic Dogs’ (Canis familiaris) Human-Like Behaviors: Or Why Behavior Analysts Should Stop Worrying and Love Their Dogs.  Journal of Experimental Analysis of Behavior, 89(2), 247-261.

Velde, Beth P., Cipriani, Joseph, and Fisher, Grace (2005). Resident and Therapist Views of Animal-Assisted Therapy: Implications for Occupational Therapy Practice.  Australian Occupational Therapy Journal, 52, 43-50. DOI: 10.1111/j.1440-1630.2004.00442.x.

Viau, R., Arsenault-Lapierre, G., Fecteau, S., Champagne, N., Walker, C.D., and Lupien, S. (2010).  Effect of Service Dogs on Salivary Cortisol Secretion in Autistic Children.  Psychoneuroendocrinology, 35(8), 1187-93.  DOI: 10.1016/j.psyneuen.2010.02.004  ("We measured the salivary cortisol levels of 42 children with ASD in three experimental conditions; prior to and during the introduction of a service dog to their family, and after a short period during which the dog was removed from their family. We compared average cortisol levels and Cortisol Awakening Response (CAR) before and during the introduction of the dog to the family and after its withdrawal. We found that the introduction of service dogs translated into a statistically significant diminished CAR. Before the introduction of service dogs, we measured a 58% increase in morning cortisol after awakening, which diminished to 10% when service dogs were present. The increase in morning cortisol jumped back to 48% once the dogs were removed from the families.").

Walsh, Froma (2009). Human-Animal Bonds I: The Relational Significance of Companion Animals.  Family Process, 48, 462-480.

Weiss, D. (2009). Equine assisted therapy and Theraplay. In E. Munns (Ed.), Applications of Family and Group Theraplay, 225-233. Lanham, Maryland: Jason Aronson.

Winkle, M., Crowe, T.K., and Hendrix, I. (2012). Service Dogs and People with Physical Disabilities Partnerships: A Systematic Review.  Occupational Therapy International, 19(1), 54-66 (discussed in a prior blog).

Export Restriction on Gray Wolf Pelts Lifted by Obama Administration

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Gray wolves south of Alaska will soon have another reason to fear hunters. Their pelts will be available for export in compliance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).  Regulations of the Fish & Wildlife Service (50 CFR 23.69) currently allow such international trade in “skin products” only of Alaskan populations of the gray wolf.  On June 26, the user-friendly format of the relevant rule will be changed to read as follows:

“50 CFR 23.69 How can I trade internationally in fur skins and fur skin products of bobcat, river otter, Canada lynx, gray wolf, and brown bear harvested in the United States?
(a) U.S. and foreign general provisions. For purposes of this section, CITES furbearers means bobcat (Lynx rufus), river otter (Lontra canadensis), Canada lynx (Lynx canadensis), gray wolf (Canis lupus), and brown bear (Ursus arctos) harvested in the United States.”

Yukon Gray Wolf Pelt (courtesy Mickey Bohnacker)
Thus, the Obama administration is intent on keeping its abysmal record with regard to gray wolves alive and strong.  When proposing the change in 2012, Fish & Wildlife acknowledged that certain populations of gray wolves were still protected:

“We initially considered that only the Alaskan populations of gray wolf and brown bear should be included in our definition of “CITES furbearers” because the Alaskan populations are not ESA-listed. However, the same is true for the Canada lynx, which is included in our definition throughout its U.S. range. Upon further review, we believe it is more appropriate to base the definition of ‘‘CITES furbearers’’ on the CITES listings of these species. The definition in § 23.69 includes those native furbearers for which States may request approval of a CITES export program. Although the State of Alaska is the only State that currently has CITES export approval for gray wolf or brown bear, we do not want to prohibit other States from seeking export approval for these species in the future if the legal and conservation status of their populations change.” (77 Fed. Reg. 14207, March 8, 2012  

Even before finalizing the proposed rules, the website of Fish & Wildlife noted that even though it was “unable to give any state outside of Alaska a programmatic approval for wolves, … the export of wolf skins is still possible.  The exporter would have to apply to the Service for a CITES export permit and we would have to make the required legal acquisition and non-detriment findings on a shipment-by-shipment basis.”  No statement is provided as to whether this actually occurred.

The 2012 proposal has now been finalized (79 Fed. Reg. 30400, May 27, 2014), so Fish & Wildlife clearly expects to start giving “programmatic approval” to states wanting to export wolf skins.  Each skin will have to have a tag (unless the animal is called a hybrid), so that there should be an accurate count of how many wolf skins are exported.  There will be no shortage of takers among the states that have been clamoring to offer hunters the opportunity to reduce their wolf populations.  In 2012, Scientific American reported that 23,000 people from across the U.S. applied for Minnesota wolf hunting permits, which could cost up to $250.  At the $100 fee for an export license the Obama administration is charging, there will be a long line of hunters and companies looking to profit from the deaths of wolves.    

Fish & Wildlife currently estimates there are 3,686 gray wolves in the Western Great Lakes (Michigan, Minnesota, and Wisconsin), and 1,674 in the Northern Rocky Mountains (Idaho, Montana, Oregon, Washington, and Wyoming).  There are 75 Mexican gray wolves in forests that straddle New Mexico and Arizona, but these will not be opened to hunting as Fish & Wildlife doubts whether this population will survive at all.  Thus, just over 5,000 wolves is enough, in the opinion of the agency, to remove gray wolves from the endangered list, and now it is enough to give hunters an economic incentive to kill them beyond the protection of livestock.   

Delisting gray wolves has been pursued by Fish & Wildlife throughout Obama’s tenure and, absent further judicial intervention, the agency may soon complete this mission, so it may be doubted whether any population of gray wolves in North America will be safe from hunters wanting to sell their valuable pelts overseas.   It has to be questioned whether Fish & Wildlife would even recognize or acknowledge a serious depletion in gray wolf populations in the future. 

There was once a great president who championed the wildlife of the United States, Theodore Roosevelt, a Republican no less, but I fear we shall never see his like again from either party.   

Thanks to Yva Momatiuk, John Eastcott, Eric Krieger, and L.E. Papet for thoughts.  

Obama Administration Allows Fur Industry to Continue Calling a Wild Dog a Raccoon

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Scientific papers rarely read like short stories, but a field note by Nino Kirbiš in Natura Sloveniae in 2012 qualifies:

Raccoon Dog (Wikimedia)
“In the early hours of [June 6] 2012, I was driving from Podova to Brunšvik. When I was approximately 3 km SE of Rače … a raccoon dog crossed the road in front of the car. The animal was about the size of a red fox (Vulpes vulpes), but had a shorter tail. The colour of the fur was mostly grey and brown. The most reliable sign that I was indeed dealing with a raccoon dog was the dark face mask on its head. It was different than the face mask of a badger (Meles meles), since the badger has black stripes placed vertically over the eyes, while the raccoon dog has a dark mask around the eyes. Also, the animal had a dark coloured head and not white, like a badger. The landscape where I spotted the raccoon dog was highly agricultural and thus different from its preferred habitat, which is wet and open: damp meadows and forests, with sparse canopy but abundant undergrowth, marshlands, river valleys and gardens …. The few kilometres distant wetland forest around Rače Fishponds may provide quite suitable habitat for the species. Whether the observed putative raccoon dog was a vagrant, a resident in this area, or if it escaped from captivity still needs to be verified… [T]his observation is fourth confirmed record of the raccoon dog occurring in Slovenia, and since all sightings have been made in different parts of the country, we may expect more encounters in the future.”

Kirbiš is talking about Nyctereutes procyonoides, a type of small Asian canid that is spreading through Europe, something of an Old World version of the coyote’s success in America.  The sighting took place in northeast Slovenia in an area sandwiched between Austia and Croatia and not too distant from Hungary.  The animal has been hunted for its fur in Siberia and parts of Asia for hundreds of years, and has recently found itself at the center of a political dispute concerning rules issued by the Federal Trade Commission.  How that dispute came about is the reason for a blog on a species most Americans have never heard of. 

But first let us take a closer look at the biology of this curious animal. 

Nyctereutes procyonoides

Michael W. Fox (2009) describes the animal as follows:

“The raccoon dog is a native of eastern Siberia, Japan, Manchuria, China and northern Indochina.  This dog has been widely introduced into a number of European countries: European Russia, Poland, Rumania, Sweden, and Finland.  This canid has short ears, shorter legs and tail than foxes, and a large dark spot beneath and behind the eyes on the cheek resembling the mask of the raccoon.”

Canis procyonoides (Gray, Illustrations of Indian Zoology)
Raccoon dog is a translation of the Latin, Canis procyonoides, the first Linnaean term for the animal given to it by John Edward Gray in 1834, one of whose sketches appears here.  The animal is called mangut in some parts of Russia and enot (raccoon) in others.  Since its pelt has long been used for fur products, there are also furriers’ terms, such as Ussurian raccoon and Asiatic raccoon, and it is the distinction in terminology between the names commonly used in biology from those used in the fur trade that has led to the nomenclature dispute that the FTC recently resolved in favor of the fur trade. 

The raccoon dog is classified biologically as a carnivorous mammal and is a separate genus, one of about 12, of the Family Canidae. Although the dog, Canis familiaris or Canis lupus familiaris, is by far the most common domesticated canid, Dusicyon australis, Cerdocyon thous, and several other fox-like canids in South America were at least partially domesticated by South American Indian groups, as discussed in a prior blog. The African Wild Dog is also a canid separate from the wolf, being instead in the Genus Lycaon.Genome studies suggest that the raccoon dog is most closely related genetically to a group of fox-like canids.(See Zhang and Chen, 2010; Ostrander and Ruvinsky, 2012.) Raccoon dogs are, however, not closely related to raccoons, which are classified in a separate family, the Procyonidae.   

V.G. Heptner and N.P. Naumov describe the animal’s coat in detail:

“The general color tone of the winter fur is dirty, earth-brown or brownish-gray with a more or less considerable overlay of black (color of guard hairs). The tail is considerably darker than the trunk. Along the back extends a darker stripe which broadens on the shoulders, forming there an unclear cross-shaped figure. The abdominal surface is yellowish-brown and the chest is dark brown or blackish.  Ears are black posteriorly.  In the eye region, in front of them and on the cheeks below and behind the eyes and crossing the ‘side-whiskers’, is located a dark (almost black) field.  Together, they form on the muzzle of the mangut a characteristic picture in the form of a mask which contrasts sharply with the brighter color of the muzzle and remaining parts of the head.  This picture in particular, and the general color tone gives the described species a certain similarity to the American raccoon.”

It is this visual similarity to the American raccoon that the fur trade wishes to emphasize, while it is the scientific classification as a canid that those seeking to limit the use of the animal’s pelt think should not be overlooked when it comes to labeling fur products. 

Heptner and Naumov say that, in its original habitat, the raccoon dog lives in “light deciduous and mixed forests near streams with dense understory, or the thick growths of shrubs, usually found on gentle slopes of mountains, interrupted by waterfalls and creeks, with rock outcrops and clear areas…. They avoid coniferous forests and are only encountered there along forest edges, riparian shrubs, or on cliffs along the sea coast. In unforested regions, they are met with only in stands of reeds along the shore of rivers and lakes.” 

The raccoon dog is nocturnal and omnivorous, eating both animal and plant food, particularly insects and small animals.  Heptner and Naumov state:

“During the day, activity of the animals is curtailed and they hide in shelters or spend the time bedded down. During the period of rut, pregnancy and the initiation of nursing the young, from March to May, the raccoon dogs are very cautious and are active almost exclusively in the dark period of the 24 hours. In summer, when the pups begin to feed independently, they frequently are encountered during the daytime. In autumn, in September, regardless of increased feeding, raccoon dogs rarely come out in the daytime and usually leave their shelters only at twilight. In winter, the animals are active at twilight and during the night.” The animal does not migrate, though as winter comes, individuals living near reeds along wetlands may move in groups to dry places. 
Winter Lair (Heptner & Naumov)
The raccoon dog uses burrows, and because it hibernates, has complex winter shelters, which may have more than one entrance.  Winter shelters may be shared with badgers, which go into hibernation a few weeks before raccoon dogs and stay in hibernation longer.  If a raccoon dog hibernates longer than a badger in a burrow, however, the badger may bite the raccoon dog to death.  This is uncommon as the raccoon dog’s hibernation does not involve a deep, uninterrupted sleep, though there is a decrease in metabolism of about 25%. 

Mating occurs in spring.  They are monogamous, though polygamy occurs in captivity if one male is kept with several females.  “Copulation occurs most frequently during the night or early in the morning, usually in quiet weather. Coitus lasts for 6-9 minutes on the average….  Pregnancy lasts from 59 to 70 days, with young born mostly in May.  Litters are usually of six or seven.  Young are born blind and open their eyes on the 9th or 10th day.  Lactation lasts from 45 to 60 days.  Sexual maturity is attained in 8 to 10 months.  In nature, animals live at around 6 to 7 years, but may live 11 years in captivity.”

The major natural enemy is the wolf, but also stray dogs, and of course human hunters.  Puppies may be vulnerable to birds of prey, including owls and eagles.  

“When in danger, [the raccoon dog] conceals itself, closely presses itself to the ground and, owing to its brown color, merges with the surrounding soil background or forest bedding. In case of direct close approach of a human, it usually closes its eyes and lies completely still, even when touched. During twilight and night, it is more courageous and sometimes tries to defend itself. It swims well, willingly enters water and can swim across wide rivers and lakes.”

Geographic Distribution of Raccoon Dog (Heptner & Naumov)
A good deal of recent research has concerned the spread of the raccoon dog into Europe, where it has been quite successful.  As stated by Jaap Mulder (2012):  “Since the Russians started to introduce the raccoon dog (Nyctereutes procyonoides Gray, 1834) in the former USSR, from 1928 onwards, the species has successfully colonized large portions of north and central Europe.”  (Also see papers by Ansorge, Drygala, Hong, Kauhala, Korablev, Mulder, Oerlemans, Pitra, Puraite in bibliography.)  Studies in France in 2005 and 2014 found considerable spread in a single decade (Leger and Ruette, 2005 and 2014). 

Thus, arguments concerning the use of the animal for fur should not be seen as implicating the survival of the species.  A map produced by Oscar Ward and Doris Wurster-Hill for The American Society of Mammologists in 1990 shows considerable expansion in Europe over what the map above by Heptner and Naumov would indicate. 

Hunting Raccoon Dogs

Heptner and Naumov report that raccoon dogs are hunted when the snow is deep, at night, using dogs often with bells on their collars so that the hunters can follow them in the dark.  “The dog quickly follows the trail and overtakes the animal, and if it does not flee into a burrow, the dog strangles it or worries it until the hunter arrives. Traps for the raccoon dogs are put at burrows, along the shores of water bodies, and around marshes and ponds.” 

Rafal Kowalczyk (2007) notes that now, in much of Europe, the raccoon dog is not hunted for its fur but rather to eradicate it as a pest: 

“In Norway, Estonia, Latvia and Lithuania raccoon dogs may be hunted all year round, with no protection during breeding season. In Denmark hunting is not allowed unless harm is done to game animals…. In Finland and Poland raccoon dogs are protected during breeding season (in Finland, only females with puppies are protected in May-July). In Finland, the annual hunting bag varied between 75,000-130,000 in 1998-2003…, 20,000 in Germany…, 6,000-10,000 in Poland …, 4,000-5,000 in Estonia, 3,500-4,000 in Lithuania …, and 2,000 in Latvia. In other countries raccoon dogs are hunted occasionally.”

Skinning Raccoon Dogs

At the beginning of the 20th century, upwards of 300,000 pelts were sold every year.  The number is far greater now.  In addition to the figures in the preceding paragraph, 150,000 annually come from China, 140,000 from Japan, and 30,000 from Korea. Many raccoon dogs are raised in cages, particularly in China. A report to which three groups contributed—Swiss Animal Protection, Care for the Wild International, and East International— provides the following information about slaughter practices of foxes, mink, and raccoon dogs in China(attachment to Humane Society submission):
Caged Raccoon Dogs (courtesy Swiss Animal Protection)

“Slaughter practices used on animals farmed for fur in China involved extremely rough handling and stunning or attempts to stun the animals with repeated blows to the head or by being flung head first against the ground. Following this treatment animals were often left next to, or piled on top of each other. Some animals may have been dead, others stunned. Clearly injured, many were convulsing, trembling or trying to crawl away. Workers made no attempts to ensure that animals were dead before skinning. In other cases animals regained consciousness as their skin was being removed. Workers then used the handle of their knife to beat the animals’ head repeatedly until they became motionless once again. Others simply stepped on the animals’ head or neck to strangle it or hold it down. Desperate and writhing in agony, animals conscious during these proceedures hopelessly tried to defend themselves even to the point where all their skin had been forced off. Even so, breathing, heartbeat, directional body and eyelid movements were evident for 5 to 10 minutes.”

Fur Products Name Guide

Under the Fur Products Labeling Act (PL 106-476, November 9, 2000), commonly just called the “Fur Act,” and regulations issued under the Act, products made partly or entirely of fur must have labels stating:
  • The animal’s name as provided in the Fur Products Name Guide.
  • Whether the fur was bleached, dyed, or otherwise artificially colored.
  • If the product includes paws, tails, bellies, sides, flanks, or waste fur, this must be stated.
  • The name or Registered Identification Number of the manufacturer.
  • The product’s country of origin.
The animal from which the fur was taken is to be identified under its “true English name,” or if there is none, “the name by which such animal can be properly identified in the United States.” For instance, Mustela vison is “mink.”  The FTC’s Fur Products Name Guide (16 CFR 301.0) provides that Nyctereutes procyonoides is to be labeled “the Asiatic Raccoon.”
Clubbed Raccoon Dog (courtesy Swiss Animal Protection)

In 2010, Congress passed the Truth in Fur Labeling Act (PL 111-313, December 18, 2010), which eliminated an exemption for furs worth below $150 but also required the FTC to initiate a review of the Name Guide.  That led to the request for comments in March 2011. 

Comments on Raccoon Dog vs. Asiatic Raccoon

Among comments submitted were suggestions that the label for the species be changed from the Asiatic Raccoon to the Raccoon Dog.  The Humane Society of the United States recommended this change for three basic reasons: Raccoon Dog is the “scientifically accepted common name” of the specie; it is also the “most widely-accepted common name;” and Asiatic Raccoon is confusing and misleading.  It is misleading because the animal is found outside of Asia and, being a member of the Family Canidae, is closely related to other canids but not to raccoons of the Family Procyonidae.  Congressman Jim Moran, who introduced the Truth in Fur Labeling Act in the House of Representatives, also argued for the term Raccoon Dog. 

Industry fought back, arguing that Raccoon Dog would “mislead consumers and harm retail sales.”   The harm to retail sales would, of course, come from the fact that people do not want to be told that they are about to buy dog fur.  The National Retail Foundation said that “how a product is marketed ought to be a critical factor in deciding” an animal’s name.  In other words, marketing obfuscation should be honored because it allows the public to remain ignorant. 

Industry got support from an official of the Fish & Wildlife Service:

“Ms. Lynn [Sharon Lynn, Senior Wildlife Inspector of the Fish and Wildlife Service] of FWS noted that the word ‘‘Asiatic’’ is helpful, despite the existence of European nyctereutes procyonoides, because it ‘gives you an idea where the animal originated naturally.’ Ms. Lynn further explained that Asia is the species’‘native habitat’ and, therefore, ‘the Asiatic name would be a neutral’ description.  Ms. Lynn observed that using ‘Asiatic Raccoon’ to refer to European nyctereutes procyonoides is like the common practice of using ‘African Lion” to refer to lions raised in America.” 
Still Alive (courtesy Swiss Animal Protection)

This fails to note that a term like lion is correctly applied to a certain taxonomic classification, but is consistent with the sort of fuzzy logic that Fish & Wildlife has been using to open up gray wolf populations to hunting in the United States.  Dr. Alfred Gardner of the United States Geological Survey gave at least tangential support for the use of Asiatic Raccoon by observing that the Integrated Taxonomic Information System (ITIS), which gives the common name of Nyctereutes procyonoides as Raccoon Dog, is not necessarily authoritative as a source for common names of species.  Unfortunately, this reference was enough to justify the FTC in claiming that it had support for the use of Asiatic Raccoon from at least two scientifically oriented—or at least (one hopes) scientifically conscious—federal agencies. 

The Fur Information Council of America argued that the “Asiatic/Finnraccoon” is very different from a dog because it “hibernates, climbs trees, … cannot bark, and it does not wag its tail.”  Also, it has “rings around its eyes, [so] it clearly looks like a raccoon.”  This is true, but irrelevant to the taxonomic status of the animal. Differences could be found with the African Wild Dog as well, and if it's fur were valuable it would probably be called the Eastern Savannah Leopard, or some such idiocy.   

FTC Stays with “Asiatic Raccoon”

In 2012, the FTC acknowledged that there were different points of view but stated that it wanted to retain Asiatic Raccoon “as the only name for that species,” yet the issue remained at least theoretically open. Then, on May 28, 2014, the agency reaffirmed this position and finalized its rules on the subject.  Bewilderingly, the FTC insists that “‘Asiatic Raccoon’ is not a trade name.  Rather, it is the true English name prescribed in the Name Guide for over 50 years.”  Thus, the FTC’s longstanding acceptance of an industry term is made into a proof that Asiatic Raccoon is “the true English name.”  The submissions of the Humane Society of the United Statesand the New York City Bar adequately refute this logic, for anyone who cares, which the FTC does not. 

Conclusion

At least three agencies in the Obama administration have defied taxonomic and genetic science, as well as the dominant lay term for a species, in order to protect the fur industry.  Perhaps this is justified by the fact that Americans don’t know what raccoon dogs are—they are not New World canids in any case—but the only real problem for the fur industry is the word “dog.”  After all, the industry sells wolf pelt products, while there are many scientists who would label the domestic dog as no more than a subspecies of the wolf, Canis lupus familiaris. 

To his credit, Obama has made a point of accepting scientific results on climate change, a difficult issue for any American politician.  Yet when it comes to wolves and raccoon dogs, the President’s people have hardly been scientific or, in the case of raccoon dogs, even logical.  It is probably too late to scream—I admit that I did not focus on this issue until it was commenting officially was no longer possible—so this blog may be no more than yelling at the umpire after the call.  Still, if enough people yell at the umpire, the next call may be made a little more carefully, which is all that I have come to hope for from the current administration with regard to wildlife. 

The history of the law discloses, in the words of Oliver Wendell Holmes, “every painful step and every world-shaking contest by which mankind has worked and fought its way from savage isolation to organic social life.”  I hope—many hope—that a part of our organic social life will involve recognizing rights for animals.  I do not know what course this may take.  I do not at present think that the law will require all citizens of any country to become vegans or vegetarians.  Yet I do think that there are some horrors perpetrated upon animals that make us less than human, and skinning them alive is surely one of them. Unfortunately, the new FTC rules are a step backward in the struggle towards any organic social life that accepts that those animals with which we share the planet have any rights at all. 



Thanks to Fran Breitkopf, Richard Hawkins, and L.E. Papet for comments and suggestions.Thanks to Mark Rissi of Swiss Animal Protection SAP for granting permission to use the photos of raccoon dogs caged, about to be skinned, and after skinning. In addition to the Humane Society of the United States, organizations posting information on these issues include the Anti-Fur Society, the FurFree Alliance, and the International Anti-Fur Coalition

Sources:
Raccoon Dog Coat (courtesy Swiss Animal Protection)

Ansorge, Hermann, Ranyuk, Maryana, Kauhala, Kaarina, Kowalczyk, Rafal, and Stier Norman (2009). Raccoon Dog, Nyctereutes procyonoides, Populations in the Area of Origin and in Colonised Regions—the Epigenetic Variability of an Immigrant.  Annales Zoologici Fennici, 46, 51-62  (“The native raccoon dogs of the Amursk region were completely separate from the European populations as a consequence of the distinct reproductive isolation of about 60 years, as well as an effect of the colonisation and migration history of the species.”).

Drygala, Frank (2009).  Space Use Pattern, Dispersal and Social Organisation of the Raccoon Dog (Nyctereutes procyonoides GRAY, 1834) an Invasive, Alien Canid in Central Europe.  Thesis, Technische Universitat Dresden. 

Drygala, Frank, Zoller, Hinrich, Stier, Norman, and Roth, Mechthild (2010).  Dispersal of the Raccoon Dog Nyctereutes procyonoids into a Newly Invaded Area in Central Europe.Wildlife Biology, 16, 150-161(This was a study of dispersal patterns of the animal in northeastern Germany.  The researchers state: “Radio-collared, dispersing animals showed a variety of movement patterns and the impression of flexible migration behaviour was confirmed. The fact that males and females showed equal dispersing behaviour is supposed to be one of the factors contributing to the high expansion and the success of the species.”). 

Drygala, Frank, and Zoller, Hinrich (2011).  Spatial Use and Interaction of the Raccoon Dog (Nyctereutes procyonoides) and the Red Fox (Vulpes vulpes) in Central Europe—Competition or Coexistence?  8th European Vertebrate Pest Conference, DOI: 10.5073/jka.2011.432.011 (finding “no evidence of strong interference competiton between the two canids.”). 

Federal Trade Commission, Fur Products Labeling Act, Advance Notice of Proposed Rulemaking; Request for Comment, 76 Fed. Reg. 13550 (March 14, 2011).  Comments were received from:
  • Humane Society of the United States; a secondary filing includes damning attachments including the report on Chinese fur industry practices was also filed.
  • Ministry of Foreign Affairs of Finland (“Finland is the world’s largest Finnraccoon fur producer with approximately 160,000 skins produced per year… we would encourage the FTC to revision its decision not to accept, as an alternative to Asiatic Raccoon, the term Finnraccoon for products of the Nyctereutes procyonoidos species.”).
  • Finland Ministry of Agriculture and Forestry (to the same effect as the country’s Ministry of Foreign Affairs).
  • BCI International Group, Inc. ("The Asiatic Raccoon product … has suffered a setback in the marketplace in recent years, as a result of the attempt to link the product in the media with the term 'raccoon dog.'").
  • Saga Furs Oyj (Favoring the Finnraccoon designation, noting that “the name ‘raccoon dog’ had resulted in a number of major department stores terminating their use of the animal because consumers confused the nyctereutes procyonoids with domestic dog.”).
  • Fur Information Council of America (“The common name, ‘Asiatic Raccoon,’ has been used on labels for fifty years.”).
  • New York City Bar, Committee on Animal Law(urging the FTC to (1) change the name of Nyctereutes procyonoides from “Asiatic raccoon” to “raccoon dog” in the Fur Products Name Guide (the “Name Guide”) and (2) reject the proposals to allow the use of the terms “finnraccoon,” “tanuki,” or “magnut” in the Name Guide to describe Nyctereutes procyonoides.”).
  • Congressman James P. Moran, 8th District of Virginia(“The FTC has proposed to continue the use of the term ‘Asiatic Raccoon’ for fur from Nyctereutes procyonoides, a species known by other federal agencies, and the scientific community, by its common English name, ‘raccoon dog.’ This species from the Canidae family is unrelated to the raccoon and appears in Europe as well as Asia, making the term ‘Asiatic Raccoon’ highly misleading. This is exactly the type of mislabeling that the statute was intended to address, in order to protect consumers who may wish to avoid buying fur from a particular species of animal.”).
  • National Retail Foundation (“[W]e believe the FTC’s propose rules under the Fur Products Labeling Act for this animal are proper and correct.”).
Federal Trade Commission, Regulations Under the Fur Products Labeling Act, Notice of Proposed Rulemaking: Request for Comment, 77 Fed. Reg. 57043 (September 17, 2012).  See also 78 Fed. Reg. 36693 (June 19, 2013), regarding additional proposals on rules regarding guaranties from third parties attesting that transferred products are not mislabeled or falsely advertised or invoiced. 

Federal Trade Commission, Regulations Under the Fur Products Labeling Act, Final Rule, 79 Fed. Reg. 30445 (May 28, 2014).

Fox, Michael W. (2009). The Wild Canids: Their Systematics, Behavioral Ecology and Evolution.  Wenatchee, Washington: Dogwise Publishing. 

Gray, John Edward (1834). Illustrations of Indian Zoology, II. London: Adolphus Richter & Co.   The version of this book on Internet Archive is protected in some manner that precludes printing or downloading, but various sites include the picture here.  

Heptner, V.G., and Naumov, N.P. (1967). Mammals of the Soviet Union, II, Part 1a.  Moscow: Vysshaya Shkola Publishers. 

Hong, YoonJee, Kim, Kyung-Seok, Lee, Hang, and Min, Mi-Sook (2013). Population Genetic Study of the Raccoon Dog (Nyctereutes procyonoides) in South Korea Using Newly Developed 12 Microsatellite Markers.  Genes and Genetic Systems, 88(1), 69-76 (describing the raccoon dog as becoming a top predator in Korea despite its modest size).

Hsieh-Yi, Yi-Chiao, Yu Fu, Mark Rissi, and Barbara Maas (2005).  Fun Fur? A Report on the Chinese Fur Trade.  Report published by Swiss Animal Protection SAP, Care for the Wild International, and East International.  See also the documentary correlated in part with this report: Dying for Fur: Inside the Chinese Fur Trade (2005). 

Kauhala, Kaarina, and Kowalczyk, Rafal (2011).  Invasion of the Raccoon Dog Nyctereutes procyonoides in Europe: History of Colonization, Features Behind Its Success, and Threats to Native Fauna.  Current Zoology, 57(5), 584-598 (“In northern Europe potential competitors include the red fox Vulpes vulpes and the badger Meles meles, but studies of their diets or habitat preferences do not indicate severe competition. The raccoon dog is an important vector of diseases and parasites, such as rabies, Echinococcus multilocularis and Trichinella spp. and this is no doubt the most severe consequence arising from the spread of this alien species in Europe.”). 

Korableve, N.P.,, Korablev, M.P., Rozhnov, V.V., and Korablev, P.N. (2011)  Russian Journal of Genetics, 47(10), 1378-1385 (“Phyologenetic patterns of the introduced population were associated with probable heterogeneity of autochthonous donor populations with respect to relatively large group of founders and a dramatic increase in the species number after the introduction.” .

Leger, Francois, and Ruette, Sandrine (2005). Le Chien Viverrin [Nyctereutes procyonoides] en France.  Faune Sauvage No. 269.  These same authors detailed further incursions in 2014.  Raton Laveur et Chien Viverrin: Le Point sur leur Repartition en France.  Faune Sauvage No. 302.   

Libois, Roland M. (1996). The Current Situation of Wild Mammals in Belgium: An Outline. Hystrix, 8(1-2), 35-41.

Mulder, Jaap L. (2010). A Review of the Ecology of the Raccoon Dog (Nytereutes procyonoides) in Europe.Lutra, 55(2), 101-127.

Oerlemans, Marcella, and Koene, Paul (2008). Possible Implications of the Presence of the Raccoon Dog (Nyctereutes procyonoides) in the Netherlands.  Lutra, 51(2), 123-131 (“The raccoon dog is an opportunistic feeder, what makes this species rather insensitive to fluctuations in single food resources and reduces dietary overlap with fox and badger. As a vector of rabies and the fox tapeworm, the presence of raccoon dogs in the Netherlands might have consequences for wild and domestic animals, as well as for people. Additionally, Trichinella can be carried by raccoon dogs and this disease thus might reach the Netherlands. Mortality, starvation, hunting, disease and traffic accidents often include animal suffering and are thus animal welfare issues.”).

Ostrander, Elaine A., and Ruvinsky, Anatoly (2012).  Genetics of the Dog.  Oxfordshire, UK: CABI  (at 249, placing the raccoon dog within the fox-like canids).

Pitra, Christian, Schwarz, Sabine, and Fickel, Joerns (2010).  Going West—Invasion Genetics of the Alien Raccoon Dog Nyctereutes procyonoides in Europe.  European Journal of Wildlife Research, 56, 117-129.

Puraite, I., Griciuviene, L., Paulauskas, A., et al. (2011). Genetic Variability of Raccoon Dogs and Their Impacts on the Environment in Lithuania.  8th European Vertebrate Pest Management Conference. DOI: 10.5073/jka.2011.432.022 (“The genetic data suggest that raccoon dogs colonised Lithuania from different neighbouring countries Belarus and Latvia. The raccoon dog impact on native species and communities (C0-C2) were moderately negative for amphibians, mollusks, rodents, birds, insects, and reptiles and for transmission of pathogens.”).

Rafal (2007). NOBANIS—Invasive Alien Species Fact Sheet: Nyctereutes procyonoides.Posting of the NOBANIS European Network on Invasive Alien Species. 

Ward, Oscar G., and Wurster-Hill, Doris H. (1990).  Nyctereutes procyonoides. Mammalian Species, No. 358, 1-5.

Zhang, Honghai, and Chen, Lei (2010).  The Complete Mitochondrial Genome of the Raccoon Dog.  Mitogenome Announcements, 21(3-4), 59-61(“The phylogenetic analysis based on the concatenated data set of 14 genes in the mitochondrial genome of Canidae shows that the raccoon dog has close phylogenetic position with the red fox (Vulpes vulpes) and they constitute a clade which has an equal evolutionary position with the clade formed by the genera Canis and Cuon.”).

Bomb Dog Units, Airport Police and LAPD Skirmish at LAX, While Overbilling by LAPD Brings Feds into the Fray

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Catherine White worked as a K-9 handler for the U.S. Customs Service for four years.  At night she took classes in law enforcement. After 9/11, she got a job with Los Angeles World Airports (LAWA) where she was assigned to a bomb dog named Charlie and became part of the LAX security system. She was occasionally paired with other handlers like Carl Smith, a bomb dog handler with the Los Angeles Police Department. Carl, though part of the LAPD’s office at LAX, occasionally participated in special duty protection details outside of LAX for visiting dignitaries or to sweep large scale community events with his bomb dog. Carl mentioned his salary to Catherine once, which was substantially higher than hers.

Catherine complained to her LAWAPD commander, Matthew Black, about the salary differential, given that she was doing substantially the same work as her counterparts in the LAPD bomb dog unit at LAX.  She also told her union representative.  Both her supervisor and her union rep were familiar with this issue. Captain Black had recently discovered that the LAPD bomb dog unit was engaging in patrols along the perimeter fence of the airport after the LAPD received intelligence that a terrorist group might attempt to enter the airport grounds through the fence.  Neither the LAWAPD nor anyone in the LAWA executive group was informed of the LAPD operation in advance.  At a meeting held with regard to LAWA’s complaint to the mayor of Los Angeles and the LAPD Chief, the head of the LAPD bomb dog unit conspicuously refused to shake hands with Matthew Black. Others who were present said it was Black who had refused to shake hands. 

Over the next few years, additional incidents involving LAPD deployments at LAX occurred several times a year and at least once led to a shoving match. Catherine began trying to avoid working with Carl and with other LAPD handlers and requested a change of assignment.   

This is an attempt to imagine an individual handler's perspective, though some of the details are taken from an employment dispute at LAX discussed in a prior blog.  Friction at an individual level soon moved up through administrative ranks and became well known across the airport and LA government generally. In addition to supervisors in various chains of command at LAWA and in Los Angeles city government, unions got involved, and officials and unions got various politicians to make legislative proposals and initiate studies and investigations.  Despite a series of proposed solutions, including three consecutive agreements regarding responsibilities and operations signed by both LAWA and LAPD officials, and attempts to bring the units together for softball and other social interactions where tension was supposed to be defused, the skirmishing continued and may have gotten worse. 

In 2012, the Federal Aviation Administration looked at the problem and largely exonerated the LAPD of an overbilling claim, but now the Inspector General of the Department of Transportation has reached a nearly opposite conclusionand determined that the FAA’s supervision of LAPD reimbursable expenditures has been inadequate.  

Inspector General and Federal Aviation Administration Disagree on LAPD Overbilling Claims

The audit report of the Department of Transportation’s Inspector General released in April 2014 states that the Los Angeles Police Department, from July 2007 to June 2012, may have overbilled the Federal Aviation Administration as much as $8 million for services that were not related to LAPD’s responsibilities at LAX.  Almost $2 million of that overbilling came from the airport canine unit of the LAPD.   

In December 2011, the Federal Aviation Administration began an investigation regarding similar suspicions about the LAPD but concluded in July 2012 that, aside from a billing error relating to the use of the LAPD’s bomb squad to respond to a call away from LAX, there had been no serious infraction of federal protocols on what the FAA could be billed for. 

The overbilling that was uncovered by the DOT Inspector General seems to have stopped more or less when the FAA concluded its investigation in mid-2012, suggesting that the FAA's investigation may have led LAPD officials to be more careful about their recordkeeping at that point. Why the FAA’s investigation did not uncover the overbilling later found by the Inspector General, or at least the substantial lack of documentation of LAPD expenses billed for, is unclear.  The authors of this blog have requested a copy of the report of the FAA investigation, which was not publicly available on any website of the agencies involved, and only alluded to in news reports, but we have yet to receive a copy and are not particularly hopeful of obtaining it.  A report commissioned by the President of the Los Angeles County Homeland Security Advisory Council from the UCLA Department of Public Policy noted that a number of documents relating to security related to LAX could not be obtained after being declared too sensitive for public release, which may be what we are encountering here.  If we ultimately get the document, we will revise this blog as needed and acknowledge any errors we have made that result from not initially having it. 

The title of the Inspector General’s audit report indicates that the FAA shares blame for the revenue diversion:  FAA Oversight Is Inadequate to Ensure Proper Use of Los Angeles International Airport Revenue for Police Services and Maximization of Resources (AV-2014-035, April 8, 2014).  Thus, there are two problems: the diversion of funds by the LAPD, and the FAA’s failure to assure that reimbursements sought for LAPD work were justified under federal regulations.  Whether FAA investigators followed Generally Accepted Government Auditing Standards, as did the Inspector General, cannot be determined without a copy of the FAA’s findings.  Some level of sloppiness would be a charitable explanation.  A less charitable explanation would be that the FAA did not want to advertise its own incompetence in the management of taxpayer dollars and mistakenly assumed that the evidence raising such an issue would not be of sufficient interest to anyone else to investigate. 

LAX may not be the only airport billing the FAA for off-airport activities of state or local police authorities.  An April 9 letter to Congress accompanying the audit report expresses the Inspector General’s concern with “revenue diversion at the nation’s airports,” suggesting that other facilities may be under suspicion. This could, of course, indicate a wider pattern and practice inside the FAA as well.  

FAA Reimbursement of Local Authorities

Under the Airport and Airway Improvement Act of 1982 (49 U.S.C. 47107(b)) and the FAA’s Airport Revenue Use Policy, Airport Revenue may be used for “capital or operating costs of the airport, the local airport system, or other local facilities owned or operated by the airport owner or operator and directly and substantially related to the air transportation of passengers or property. Such costs may include reimbursements to a state or local agency for the costs of services actually received and documented….” Airport revenue is defined quite broadly to include revenue coming from the operation of the airport, from granting rights to conduct activities on the airport property, from the sale of airport real property, etc.  The idea of restricting the use of airport revenue at federally-assisted airports is to make them as self-sufficient as possible, thereby limiting the federal financing required.  Federal rules state that “[r]evenue diversion is the use of airport revenue for purposes other than the capital or operating costs of the airport, the local airport system, or other local facilities owned or operated by the airport owner or operator and directly and substantially related to the air transportation of passengers or property.” 

Los Angeles International Airport Showing Police Facilities
Reimbursable operating costs of a local agency do not include off-airport work of a local police department that divides its responsibilities between the airport and the surrounding community.  Here’s where the dogs come in.  The Inspector General’s report states that in “2012, LAWA identified that the City incorrectly charged LAWA approximately $1.7 million, including statutory interest, for off-airport responses by the City’s Bomb K-9 unit.”  The IG’s April 9 letter to Congressmen elaborates that the LAPD Bomb Squad K-9 teams were “deployed off-airport for events such as dignitary protection details, major public events susceptible to terrorism, and reports of a potential explosive device.” 

The map shows the location of the LAPD K-9 unit which, being on the edge of the airport grounds, allows for easy off-airport deployment.  The letter to Congress also puts the exact amount of the Bomb Squad K-9 Unit’s charges for non-airport assignments at $1,734,060, including statutory interest. 

Los Angeles Airport Peace Officers Association vs. LAPD  

Both the 2012 FAA investigation and the 2014 audit by the DOT Inspector General were in part initiated by complaints of the Los Angeles Airport Peace Officers Association (LAAPOA), a union that represents the airport police force, the Los Angeles World Airport Police Department (LAWAPD).  LAWAPD, which had 450 officers in 2011, is entirely separate from, and often at odds with, the Los Angeles Police Department (LAPD). LAAPOA has been concerned that its members are paid less than LAPD officers doing equivalent jobs, that LAPD officers regard the LAWAPD as not being a real police department with real police but rather a collection of glorified security guards, that LAPD units undertake operations without consulting or coordinating with LAWAPD units, and that the security of the airport is compromised by the lack of effective coordination between the units. 

LAPD officials agree with the risks coming from the lack of coordination, but say that the LAWAPD shares the blame.   In a 2006 posting on the LAPD website, then Los Angeles Police Department Chief William J. Bratton acknowledged the responsibilities of the LAPD and LAWAPD at LAX were often overlapping and misunderstood, but insisted that any discussion of a turf war between the agencies was purely a creation of the press. In any case, the matter was going to be solved by a new Memorandum of Agreement (MOA) between LAPD and LAWAPD.  The 2006 MOA was a revision of a 1988 MOA that had proved inadequate in clarifying responsibilities.  Subsequent events have demonstrated that the 2006 MOA was also unable to resolve the friction, so on March 24, 2013, a new MOA was signed, as will be described below. 

Los Angeles Mayor’s Blue Ribbon Panel

Concerns about security at LAX reached such a level that LA Mayor Antonio R. Villaraigosa convened a “Blue Ribbon Panel” chaired by a federal judge, Lourdes G. Baird, and a retired Los Angeles Superior Court Judge, Judith C. Chirlin.  The Panel submitted its report on LAX security in June 2011, finding that LAX “remains a (redacted) target for terrorists.”  The report contains 119 redactions, so it cannot be certain that all conclusions relevant for this blog are publicly available, though some of the redactions are of single words or phrases and seem to reflect a rather bureaucratic belief that anything that smells bad should be excised.  The Panel states the scope of the disaster that could arise were LAX compromised: 

“LAX is a (redacted) target for terrorists and encompasses over 3,425 acres with multiple access points and a vast perimeter. It has over 48,000 personnel who work at the airport, and over 59 million passengers traveled through LAX last year. In addition, there are numerous federal, state and local law enforcement agencies with both overlapping jurisdictions and distinct responsibilities for security at the airport.”

What is the missing adjective before “target”? Prime? Ideal?  Appropriate would be too mild to be worth taking out.  Inevitable would be too literary for a group of judges and officials.  In any case, anyone who is a fan of NCIS-Los Angeles regularly sees the City saved from disasters far more extensive than could be imagined by the redactors of this document. 

Of particular concern to the Panel was the “historical tension between the LAWAPD and LAPD” which “impedes their willingness to share information and coordinate their counterterrorism efforts.  The lack of close planning and coordination between LAWAPD and LAPD increases the risk that critical information may not be disseminated to each other in a timely fashion.”  Yet the Panel disagreed with a June 8, 2010 letter it quoted from the LAAPOA and the Service Employees International Union to the Chief of LAWAPD stating that LAX “is more vulnerable to a terrorist attack than at any time since 9/ll.” The Panel was critical of the LAAPOA for not keeping its security concerns internal but instead issuing “press releases publicly setting forth their concerns about airport security.”  Some of those press releases were, according to the Panel, inaccurate:

“Following the March 2, 2011 shooting of U.S. military personnel in Germany, the airport police union issued a press release erroneously claiming that the LAWAPD had ‘stepped up security’ and thereby gave the misleading impression that there was a credible threat to Los Angeles. More recently, the airport police union issued a press release erroneously indicating that LAWAPD was on ‘heightened alert’ following the death of Osama bin Laden.”

The Panel accused the union leadership of exacerbating tensions between LAWAPD and LAPD officers in a manner it deemed unnecessary and unprofessional and said the union was “advocating the complete elimination of the LAPD’s presence at the airport, even though this is very unlikely to occur.”   

There was specific mention of the canine units of the separate police forces:  “LAWAPD and LAPD also have officers assigned to the joint explosive detection canine unit, which has more canine teams than any other airport in the nation.”  “Joint” may be overstating the relationship, as the Panel recognized that the units were still separate, that “both LAWAPD and LAPD have canine units that patrol the airport,” and that these separate units “coordinate their daily canine deployments.”  A footnote elaborated:

“When two officers and their canines are deployed together, one of the teams may be from LAPD and the other team may be from LAWAPD. The departments are in the process of updating their standard operating procedures to address the minimum deployment levels for the airport based upon viewing the LAPD and LAWAPD as one unit. In reviewing the canine teams, we did note that the canine facility at the airport is inadequate to accommodate the current number of canines deployed at the airport.”

Although the report was issued prior to the beginning of the FAA’s investigation into the claims of the LAAPOA that LAPD was improperly receiving reimbursement from the FAA for off-airport work, the Panel seems to have known of the issue as it alludes to concern “about diverting police resources away from LAX….” There is no elaboration, however, so it is not certain if this concern might relate to bomb dog units or other units in the LAPD. 

Referring to the 2006 MOA between the LAWAPD and the LAPD, about which Chief Bratton had expressed such optimism five years earlier, the Panel states: 

“Another problem is that the MOA between the departments is often interpreted differently by both departments, is not always followed in practice, and does not necessarily reflect the current allocation and utilization of police resources at LAX. Each department interprets the MOA to its own perceived advantage, and in a manner that is frequently inconsistent to how the other department interprets the MOA. The result is that both departments are engaged in what could be considered ‘mission creep,’ in that they have expanded their duties or seek to expand their duties into the area that is the responsibility of the other department.”

The Panel’s recommended solutions are based around improved coordination between the various law enforcement groups operating at the airport, with more exact boundaries between their authority and responsibilities. 

UCLA Study
 
A 2012 study by the UCLA Department of Public Policy, The Optimal Law Enforcement Structure for Los Angeles International Airport, found that the dual law enforcement structure at LAX was characterized by “cross-agency tension” and the UCLA analysts sought to determine what the optimal structure would be. This study was completed before the FAA began investigating the LAAPOA complaint regarding overbilling by the LAPD, but the authors note that revenue from the airport “cannot be siphoned off to plug gaps in the city’s budget.”  Also, they refer to “a perception that the City orders LAPD officers to LAX without LAWA’s approval and then expects the agency to reimburse it.” 

The possible solutions considered by the analysts to resolve the tension between the different departments were (1) eliminating either the LAPD substation, including the LAPD bomb-sniffing dogs and giving all responsibilities to the Los Angeles World Airport Police Department (LAWAPD), (2) letting LAPD take over all law enforcement responsibilities at the airport, (3) retaining the current system, or (4) keeping both departments but giving LAWAPD greater control.  The report indicates that an attempted merger of the two departments in 2005 “keeps the LAWAPD and its union, the Los Angeles Airport Peace Officers Association (LAAPOA) on guard,” and rejects the first two approaches as politically impossible.  Since the current system, by their assessment, is not working, they settle on the fourth possibility, i.e., giving LAWAPD greater control. 

Specifically as to dogs, the study notes that in addition to LAPD and LAWAPD canine units, TSA and Customs and Border Patrol “also have canines on the premises for duties relevant to their expertise.”  Acknowledging that most of the friction with regard to canine units is, however, between LAPD and LAWAPD units, the study concludes:

“Canine services at the airport are jointly provided by LAPD and LAWAPD who share a common kennel. The LAWAPD should assume control and authority over all canine services except for the bomb detection canines reserved for LAPD’s bomb squad unit. These bomb detection canines and dog handlers should all be from LAPD, while all other TSA certified and dual purpose dogs should belong to LAWAPD.”

2013 Memorandum Agreement

The previously mentioned 2013 MOA between Los Angeles World Airports and the LAPDstates that LAPD is to provide LAWA annually with a proposed deployment and operations plan, giving LAWA “sufficient time to incorporate the costs associated with law enforcement into its fiscal budget.”  Yet the MOA also accepts that operation needs “are dynamic and are subject to modification as threats, crime problems, and other circumstances change.” If this is expected to remove the sort of blindsiding that the UCLA study refers to as arising from the LAPD making sudden and unannounced deployments to LAX, it is hard to see that such an open-ended protocol will really make a difference. 

The MOA states that LAPD personnel detailed to LAX must keep full and accurate records of any off-airport work, and notify LAWAPD in advance unless LAPD personnel are responding to “help calls, major traffic collisions, or compelling/time sensitive public safety emergencies.”  Specifically as to dogs, the MOA provides:

“The parties acknowledge that TSA policy currently allows law enforcement agencies to use TSA-funded explosive detection canines outside the transportation environment for a maximum of 20% of the time. The parties recognize, however, that FAA regulations do not allow LAWA to reimburse LAPD for the deployment of TSA-funded canines for non-airport related activities and that any off-airport use of canines must be tracked and the costs withheld from the LAPD invoices to LAWA….”

Does this mean that the LAPD will regularly bill the FAA for 80% of the expenses related to its airport bomb dog unit?  Whether this MOA will lead to a better relationship between the two police forces, or between their separate canine units, is probably too early to tell, but the authors of this blog prefer, for the time being, to remain skeptical. 

Inspector General’s Report and the Future

Curiously, the recent Inspector General’s report has some praise for the recordkeeping of the Bomb Squad K-9 unit in that at least that unit maintained records of non-airport work, whereas other departments did not:

“[A] LAWA official stated in August 2013 that reporting off-airport time by full time LAPD personnel at LAX, other than the Bomb Squad K-9 unit, will not be necessary because LAWA believes the other full time LAPD personnel rarely engage in non-airport related activities. We requested documentation to support this statement as well as the rationale for the change in the agreed upon actions for record keeping. However, we have not received this documentation to date. By only requiring the Bomb Squad K-9 unit to track off-airport time instead of any LAPD personnel assigned to LAX on a full-time or full-time equivalent basis, LAWA could be paying for police services not related to the airport, which would be a diversion of airport revenue.”

Among departments not keeping records about off-airport work was the Narcotics Division-K-9, so presumably the LAPD would argue that unlike the bomb dog unit, the drug dog unit does not do any (or at least not very much) work outside of the airport boundaries. 

The Inspector General was not the only one worrying about the amount of revenue that was being diverted from LAWA, a financially independent department of the City of Los Angeles.  Three Congressmen sent letters to the IG in 2011 and 2012 with similar concerns.  The LAAPOA has also been instrumental in getting legislation passed to recognize LAWAPD officers as full-fledged police, resulting in a law that came into effect on January 1, 2014.  The legislation was supported by the mayor and police chief (now respectively Eric Garcetti and Charlie Beck).  Whether nominal equality will lead to respect from the LAPD officers at LAX remains to be seen. 

Conclusion

The disputes between the LAPD and LAWAPD have involved individual officers, supervisors, the chiefs of both departments, the mayor, various panels and experts, legislators including Congressmen, the Federal Aviation Administration, and now the Inspector General of the Department of Transportation.  The 2012 findings of the FAA and the 2014 findings of the DOT Inspector General prove that politics makes strange bedfellows indeed.  It is too simplistic to say either that the FAA investigators became tools of the LAPD or that the DOT Inspector General had wool pulled over his eyes by the LAAPOA, but the diverse results of the investigations are themselves a reason for concern and further analysis.  The FAA’s 2012 report should be made public so that it can be fairly compared to the 2014 report of the DOT IG, not only as to its conclusions but also as to the methodology of the investigators, and whether Generally Accepted Government Auditing Standards were employed by FAA investigators, as was asserted by the DOT IG.   

If the friction continues, this must be a great concern since both overlaps and gaps between warring or even infrequently skirmishing agencies can lead to failures in security, which when it comes to airports and the threat of terrorism can result in disasters on the greatest scale.  If that potential is found to continue, then the bullet must be bitten and the agencies must be forcibly collapsed so that there is one chain of command and one individual at the top, whose skills will have to include the ability to combine two work forces into a single and effective unit.   

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

Flying with Your Pet in Cargo: New Rules Help Choose the Safest Airline

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A year and a half ago I wrote a blog about changes the Department of Transportation was proposing to make on the incident reports airlines must file when an animal is lost, injured, or dies in their custody.  Now the proposal has been finalized, largely in the form proposed by the Department. All transport of pets is covered, so if you bring your pet parrot with you on vacation and it gets loose and bites a baggage handler the airline will have to file an incident report, but commercial shipments of parrots are not covered, only commercial shipments of dogs and cats. Animals that fly with you in the cabinservice animals and small petsare not covered because they remain in your custody.

Foreign carriers are not covered by the law, though overseas flights of domestic carriers are covered, including flights between two foreign airports.  Cargo airlines and all-cargo flights are not covered.  This may encourage some organizations, such as laboratories using dogs and cats for experiments, to avoid transport of these animals with domestic passenger carriers since, without reporting requirements, foreign and cargo carriers are likely to offer lower rates. If you are considering flying with your pet, my advice would be to choose a U.S. domestic airline.  It may not be any more careful than a foreign carrier, but at least it will have to report an incident if one occurs, which involves some reputation risk. That does not assure anything, but it allows you to follow up by at least making sure that the airline publicly acknowledges any fault they may have had with regard to the incident. 

Covered air carriers will now be required to report the total number of animals transported each year.  This will be important for consumers in that it will allow for a calculation of what percentage of animals are lost, injured, or die with each carrier on an annual basis.  A number of commenters, particularly animal rights and welfare organizations, had argued that reporting requirements should cover all types of animals, not just dogs and cats.  The Department of Transportation declined to do this, saying:

“We are not expanding the definition of ‘animal’ to cover all species of animals. We believe it would be unduly burdensome to require covered carriers to report the death, loss, or injury of all species of animals because there potentially could be thousands of individual animals such as fish, rodents, and insects that are transported by air carriers in a single commercial shipment.”

If an air carrier had no incidents during the year, it must still file a report indicating that that it had “0” incidents. It will take some years for significant statistics to gather, but this change will in time provide important data for passengers who want to be sure that they are using the safest airline, at least where there is a choice between several. 

The expansion of the number of carriers that must file reports will affect any carrier that operates scheduled service with at least one aircraft with a design capacity of more than 60 seats.  Previously, reporting carriers were defined as carriers receiving at least 1% of domestic scheduled-passenger revenues. Thus, some smaller airlines that did not have to report incidents before will have to do so now. 

Categories of Animals in Flights

The preamble to the final regulations explains the categories of animals in flights from an airline's perspective:

“There are three categories for animals transported in scheduled passenger air transportation: ‘unassigned in the cabin;’ ‘accompanied baggage;’ and ‘live cargo shipments.’ Animals categorized as ‘unassigned in the cabin’ are usually small pets that remain with the owner in the cabin for the duration of the flight. Air carriers may allow a limited number of passengers per flight to transport their animals as ‘unassigned in the cabin.’ [S]ervice animals accompanying individuals with a disability are not included in this category. Animals categorized as ‘accompanied baggage’ are pets traveling with passengers on the flight that are checked as baggage, remain in the custody of the air carrier for the duration of the flight, and are transported in the cargo compartment. Animals categorized as ‘live cargo shipments’ are animals that are not associated with passengers on the flight and are transported in the cargo compartment. While ‘accompanied baggage’ and ‘live cargo shipments’ may or may not be in different areas of the cargo hold of an aircraft, the primary differences between these two categories are shipping procedures and price points.”

Incident reports are filed on the second two categories, pets traveling with passengers and live cargo shipments on passenger flights. 

Recent Incidents

For the December 2012 blog I reviewed all prior incident reports—which go back to 2005—that had been filed by airlines.  Although there were some gruesome cases, there were fewer than I had expected, and I had to concede that the risk of putting a pet in the cargo hold was generally very low.  Since that blog, there have been more incidents, but many appear to have been at least partly the fault of owners.  Some pet owners used poorly constructed crates, or crates that pets were able to claw or bite their way out of.  One report (November 2013) included the following narrative:

“Upon arrival into Los Angeles, ramp personnel opened the cargo door to find a female boxer loose in the cargo area. Supervisors contacted the pet’s owner and escorted her planeside. The dog had chewed out of her kennel and had a small piece of metal stuck in the skin, next to her eye. The pet owner was able to flick the piece of metal out of her dog’s skin. The pet owner put a leash on her dog and they were escorted back to baggage claim.”

Some animals died because they had heart conditions or other illnesses.  One narrative described a seven-year-old pit bull dying because of a “combination of underlying cardiovascular disease and acute interstitial pneumonia.”  Necropsy of another dog discovered “histopathological diagnosis of multifocal chronic proliferative pneumonitis.”  Another narrative stated:

“Veterinarian determined cause of death as severe gastric and SI loop distension from air. Suspected animal was anxious during flight which lead to panting and air distension of stomach resulting in increased abdominal pressure on major abdominal vessels and subsequent hypotension and shock.” 

The message is: don't put your pet in cargo unless you're sure the animal can handle the confinement, isolation, noises, and the general spookiness of the experience that can cause physical and emotional stress.  Discuss it with your vet if you're in doubt.

Not too many cases involved clear fault of the airline.  One cat that had been on an American Airlines flight was removed by an employee during TSA screening so that crate could be x-rayed.  The owner was not present and the cat escaped. One death could not be explained because the flight (in August 2013) landed in a Spanish-speaking country where the authorities required that a dog’s remains be cremated in order to be released to the owner. Thus, overseas flights contain the possibility that local authorities may not allow a necropsy or other procedure that would be administered in the U.S.

A month by month compilation of incident reports of all sorts, including animal incident reports, has been posted by Jol A. Silversmith on a website called Third Amendment.  Mr. Silversmith is to be thanked for going to the trouble of extracting these reports from arcane locations in the Department of Transportation website structure and making them easily available.  

Additional Note.  Jol Silversmith, whose posting of incident reports was just mentioned, advises me of a gap in the regulations, in that they may not cover service animals that are put in cargo.  Service animals are not pets under Department of Transportation regulations, nor would they generally be part of a commercial shipment. Consequently, they are not "animals" for purposes of the incident-reporting regulations. Horizon Air filed a report about an incident involving a service animal, a dog, on February 20, 2013, but it would appear that an airline would not be required to file such a report under the wording of the regulations. I admit that I would probably never have noticed this possibility, but Mr. Silversmith is an expert on aviation law. It probably reflects an oversight on the part of the drafters of the regulations.  Of course, the more common situation involves passengers claiming that their pets are service animals in order not to have them travel in cargo.  The facts of the incident indicate that the passenger used a wheelchair.  She may have felt that managing the dog during the flight would be too much of a burden. For additional perspective, see "The Dog That Did Nothing: The Curious Incident of DOG's Animal Incident Reporting Requirements,"TransLaw (Summer 2006).        

Department of Transportation.  Reports by Air Carriers on Incidents Involving Animals During Air Transport. RIN 2105-AE07, 79 Fed. Reg. 37938 (July 3, 2014).  The final rule is as follows, with major changes from the December 2012 proposal in italics. An 

PART 235—REPORTS BY AIR
CARRIERS ON INCIDENTS INVOLVING
ANIMALS DURING AIR TRANSPORT
Sec.
235.1 Definitions.
235.2 Applicability.
235.3 Reports by air carriers on incidents involving animals during air transport.
Authority: 49 U.S.C. 41721.

§ 235.1 Definitions.
For the purposes of this part:

Air transport includes the entire period during which an animal is in the custody of an air carrier, from the time that the animal is tendered to the air carrier prior to departure until the air carrier tenders the animal to the owner, guardian or representative of the shipper of the animal at the animal’s final destination. It does not include animals that accompany a passenger at his or her seat in the cabin and of which the air carrier does not take custody.

Animal means any warm- or coldblooded animal which, at the time of transportation, is being kept as a pet in a family household in the United States and any dog or cat which, at the time of transportation, is shipped as part of a commercial shipment on a scheduled passenger flight, including shipments by trainers and breeders.

§ 235.2 Applicability.
This part applies to the scheduled domestic and international passenger service of any U.S. air carrier that operates such service with at least one aircraft having a designed seating capacity of more than 60 passenger seats. The reporting requirements of this part apply to all scheduled-service passenger flights of such carriers, including flights that are operated with aircraft having 60 or fewer seats.

§ 235.3 Reports by air carriers on incidents involving animals during air transport.
(a) Each covered carrier shall, within 15 days after the end of the month to which the information applies, submit to the United States Department of Transportation’s Aviation Consumer Protection Division a report on any incidents involving the loss, injury, or death of an animal during air transport provided by the air carrier, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall be made in the form and manner set forth in reporting directives issued by the Deputy General Counsel for the U.S. Department of Transportation and shall contain the following information:

(1) Carrier and flight number;
(2) Date and time of the incident;
(3) Description of the animal, including name, if known;
(4) Name and contact information of the owner(s), guardian, and/or shipper of the animal;
(5) Narrative description of the incident;
(6) Narrative description of the cause of the incident;
(7) Narrative description of any corrective action taken in response to the incident; and
(8) Name, title, address, and telephone number of the individual filing the report on behalf of the air carrier.

(b) Within 15 days after the end of December of each year, each covered carrier shall submit the following information (this information may be included in any report that the carrier may file for the loss, injury, or death of animals during the month of December):

(1) The total number of incidents involving an animal during air transport provided by the air carrier for the entire calendar year, including incidents on flights by that carrier that are operated with aircraft having 60 or fewer seats. The report shall include subtotals for loss, injury, and death of animals. Report ‘‘0’’ for any category for which there were no such incidents. If the carrier had no reportable incidents for that calendar year, it shall report ‘‘0’’ in each category. Covered carriers shall use the following data table when reporting the total number of animal incidents during air transport provided by the air carrier for the entire calendar year:

Total number in the calendar year
Deaths
Injuries
Loss

(2) The total number of animals transported in the calendar year. If the carrier did not transport any animals for that calendar year, it shall report ‘‘0.’’
(3) The December report must contain the following certification signed by the carrier’s authorized representative: ‘‘I, the undersigned, do certify that this report has been prepared under my direction in accordance with the regulations in 14 CFR part 235. I affirm that, to the best of my knowledge and belief, this is a true, correct and complete report.’’

Guarding Sheep: Risks of an Ancient Function in the Modern (Ever More Crowded) World

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Livestock Guarding Dog Fighting Coyote (USDA)
An attack of a bicyclist in a national forest in Colorado has been sent back to lower courts by the Colorado Supreme Court for a determination of whether the sheep guarding dogs that attacked the bicyclist were under the control of their owner at the time of the attack.  What control will mean in this case is uncertain because the appellate court had not seen control of the dogs as an issue but rather control of the land on which the attack occurred. 

Defining control with regard to sheep guarding dogs will not be easy.  Unlike suspect apprehension dogs, which are under the control of a police handler even if temporarily out of the handler’s sight, livestock guarding dogs spend most of their time protecting sheep, often with the handler miles away.  Indeed, their value is in reducing predation by being where the shepherd cannot be.  Some speculation on what control will mean here is now appropriate, and it is to be hoped that the case will continue, though the costs to the litigants, financial and emotional, may bring it to an end before such questions can be answered. 

First, however, let us look at the history of the case, and of livestock guarding in general.

An Attack by Sheep Guard Dogs in Colorado

Over 2.75 million sheep graze on 614 million acres of public lands in the United States, making this one of the largest uses of federal lands.  Most western ranchers depend heavily on federal or state trust lands for grazing and access to those lands is essential to their economy.  Samuel and Cheri Robinson, like many sheep owners in the U.S., used guarding dogs to protect their herds against mountain lions, wolves, coyotes, feral dogs, and other predators. 

Renee Legro was in a bicycle race in the White River National Forest when she was attacked by the two sheep guarding dogs owned by the Robinsons.  The Robinsons had a permit from the U.S. Forest Service to graze sheep in the area, and the Vail Recreation District had a permit to periodically conduct the bicycle races on roads in the Forest.  The attack resulted in serious injuries to Legro, who sued the Robinsons. 

Long-time readers of this blog may recognize the facts, which were described in a prior blog concerning a decision of a Colorado appellate court. The matter has now been considered by the Colorado Supreme Court.  Robinson v. Legro, No. 12SC1002, 2014 CO 40, 2014 Colo. LEXIS 414 (May 27, 2014).

The Colorado Supreme Court provides additional detail regarding the attack:

“Renee Legro was attacked on a public road by two of the Robinsons' dogs, Tiny and Pastor, while participating in a mountain bike race sponsored by the Vail Recreation District. The road is located on land that both the Robinsons and the Vail Recreation District were entitled, by permit, to access. Ms. Legro sustained serious injuries during the attack. Neither the Robinsons nor their employees were near the scene. The Robinsons' shepherd was about a little over a mile away from the area of the incident, ‘down by the river, trying to get the sheep to move along,’ at the time of the attack; he did not hear about the incident until the next day. Campers intervened to help Ms. Legro.”

Grazing Permit

The court then describes the sheep ranching operation of the Robinsons as follows:

“Samuel and Cheri Robinson are sheep ranchers who hold a 'Term Grazing Permit' issued by the United States Forest Service.The permit allows the Robinsons to graze a certain number of sheep on federal land within the White River National Forest in Eagle County for a period of ten years, at which time they must reapply for the permit. The Robinsons owned several Great Pyrenees dogs to protect their sheep from predators. Predator control dogs bond with and protect livestock by patrolling the grazing area, alerting the livestock to potential threats such as coyotes and bears, and chasing predators away as necessary.”

Colorado Dog Bite Statute

Colorado has a strict-liability dog bite statute which provides that a “person … who suffers serious bodily injury or death from being bitten by a dog while lawfully on public or private property shall be entitled to bring a civil action to recover economic damages against the dog owner regardless of the viciousness or dangerous propensities of the dog or the dog owner's knowledge or lack of knowledge of the dog's viciousness or dangerous propensities.” Colorado Revised Statutes (CRS) 13-21-124

There are six exemptions to strict liability, however, one of which is a “working dog” exemption that provides that a “dog owner shall not be liable to a person who suffers bodily injury, serious bodily injury, or death from being bitten by the dog: … (f) While the dog is working as a hunting dog, herding dog, farm or ranch dog, or predator control dog on the property of or under the control of the dog’s owner.”  CRS 13-21-124(5)(f).

Issue before Colorado Supreme Court

Guard Dogs with Sheep (USDA)
The Colorado court of appeals had interpreted the phrase, “on the property of or under the control of the dog’s owner,” as requiring that the dogs were working as predator control dogs on the dog owner’s property or on property under the dog owner’s control.  Thus, the question for that court was whether the bite occurred on property that was under their control as a result of the grazing permit.  Control was defined by that court to mean at least “sufficient control over the property such that a dog owner has the right to exclude persons from the property.” 

The question, according to the Colorado Supreme Court, was whether the appellate court had correctly interpreted the phrase, “on the property of or under the control of the dog’s owner,” in saying that the control question had to be resolved by a determination of whether the bite occurred on property under the Robinsons’ control.  The problem, the Supreme Court said, was almost grammatical:

“While we acknowledge that there is some facial ambiguity over whether it is the property or the dog that must be controlled by the dog owner, the more grammatically correct and logical reading of the exemption is that ‘on the property of’ and ‘under the control of’ modify ‘[w]hile the dog is working.’ A dog owner is therefore exempt from strict liability if a person is bitten by a predator control dog ‘while the dog is working’ either (a) ‘on the property of . . . the dog's owner’; or (b) ‘under the control of the dog's owner.’ Thus, it is control of the dog, not control of the property, that is the relevant inquiry.”

Other Types of Working Dogs

The Colorado Supreme Court notes that the working dog exemption to strict liability for a dog bite applies also to hunting dogs, herding dogs, farm or ranch dogs, as well as to predator control dogs such as the Robinsons used.  The court states:

“Much of these dogs'‘work’ occurs on public lands; yet, the court of appeals would allow their owners to invoke the exemption only when they could lawfully exclude others from public lands--a right that these hunters, farmers, and ranchers rarely, if ever, have on federally owned lands--practically eviscerating the exemption.”

The court notes that the exemption for working dogs “limits strict liability for bites that occur while dogs are being used to complete socially beneficial tasks.” 

Court of Appeals Nevertheless Affirmed

Despite determining that the appellate court had posed the wrong question regarding the application of the strict liability exemption to the Robinsons, the Supreme Court affirmed the decision of the appellate court to return the case to the trial court.  That court will now be required to determine whether the dogs were under the control of the Robinsons at the time of the bite.  Since sheep guard dogs regularly work independently, living with a herd, not with the master such as sheep herding dogs do—indeed the concept of a handler is often irrelevant to the kind of training such dogs receive—the concept of “control” is not the same here as it is for most other trained working dogs. Consequently, the matter could be far from over.    

When does the owner have control of a sheep guarding dog? The shepherd was over a mile away at the time of the incident and did not know about it for a day.  Yet this is to be expected with sheep guarding dogs. They are particularly valuable when there is no one else protecting the sheep.  If shepherds were always nearby, they would often not be needed.  So does “control” require anticipating the presence of bicyclists who might come near the herd and training the dogs to accept the presence of humans? 

Control

The USDA in its brochure, Livestock Guarding Dogs: Protecting Sheep from Predators, provides certain cautions regarding the use of livestock guarding dogs, including advising owners to do the following:
  • Alert neighbors that the dog may wander onto their property and enlist their aid in preventing roaming.
  • Post their property as to the presence of a dog.
  • Keep the dog off roads.
  • Be alert to the presence of poison baits, rodenticides, traps, and snares, and take appropriate precautions.
Although this is worded with the ownership of land in mind, it can be adapted to a situation involving a grazing permit.  Thus, sheep owners with such a permit should notify the authority granting the permit that they will be using livestock guarding dogs on the property to which they have been given access.  If some posting is possible, it should be done.  Keeping the dog off roads can perhaps best be accomplished by regularly checking the location of the herd. 

J.R. Lorenz and L. Coppinger, in their manual, Raising and Training a Livestock-guarding Dog, note that training goals depend in part on where a dog will be working.   Some dogs will have to work “in distant pastures, away from the house, and away from constant shepherding.”  They state: 

“[A] commercial producer with several hundred sheep may require a dog that is shy of people. A dog that prefers sheep to people will work better in unsupervised settings. Shyness to people can be fostered by minimizing human attention, beginning at 5 weeks of age.”

The issue of whether a working dog must be under a handler’s control has been addressed numerous times by courts in the context of serious and fatal attacks by police dogs.  (See Police and Military Dogs, Chapter 20: Suspect Apprehension and Bite Issues.)  In that context it has been determined that dogs released to find or apprehend a suspect can be out of the handler’s eyesight for brief periods if necessary because of the circumstances of the search, such as where a suspect is hiding in dark warehouse or a dense forest.  Such situations, however, are not analogous to the work of livestock guarding dogs, which are taught to identify with the sheep or other livestock they guard, and should often be kept out of the house so as not to become pets or to feel more comfortable with humans than with sheep.

On the other hand, having dogs that protect sheep against predators in areas where humans are also common should bring a degree of responsibility for the risks such dogs might bring to the humans.  Does that responsibility fit within the definition of control?  Perhaps, but certainly not with presumed handler proximity of a suspect apprehension or tracking dog.  How, then, is control to be defined?  By posing the question as one of control of the property, the appellate court at least found an approach that allowed for a determination of the meaning of control.  Following the Colorado Supreme Court’s logic will require the courts faced with defining control to explore areas where no easy precedent is available.  One area which will have to be considered involves nuisance cases where livestock guarding dogs are the nuisance. 

Nuisance Cases

Courts have exempted livestock guarding dogs from nuisance liability. In Hood River Country v. Mazzara, 193 Ore. App. 272, 89 P.3d 1195 (2004), six hours of barking would have ordinarily been a nuisance liability, and the complainant could have obtained relief if there were proof that the dogs were not barking at predators.  In the absence of such proof, however, the barking could have been a “farm practice” under Oregon statutory law.  The dogs were used to guard goats. 

“The county, for its part, introduced no evidence that use of livestock guardian dogs was not a farming practice or that defendant was not using her dogs in a generally accepted, reasonable, and prudent manner. The county focused on the fact that the dog barked for six hours, but it did not adduce any evidence that the dog was not in fact reacting to a predator or that barking of that duration could not, somehow, meet the definition of a farming practice.”

This was stated by an Oregon appellate court, reversing the trial court.  The trial judge had engaged in the following colloquy with the attorney for the goatherd:

"[DEFENSE COUNSEL]: If [the complaining neighbor is] unable to verify whether there was or was not a predator around, Mr. Tomson--or Mr. Johnson, from the Oregon Department of Agriculture testified these dogs sense a lot more than humans do. They'll sense by hearing better than humans, smell better than humans, they may know something's there when humans don't, and that's a completely appropriate response for that dog to bark to keep that predator away, and if it takes six hours, it takes six hours.

"THE COURT: Well, I think that's patently ridiculous, and I would never accept that. I'm not venting on you; I'm just venting on the idea that it would be appropriate for some dog out to just bark, bark, bark its life away out there, and that it is not reasonable for an owner of a dog, if it really wants that dog to protect their animals, to not be there to respond to it, to just expect this dog to be out there in an area where there's people that are going to be disturbed. I just don't accept that within the Agricultural Practice Act, and I'm not going to.

"So, if we're arguing about it's okay for six hours of barking, eight hours of barking, two hours of barking, I have the facts of this case and the facts here are that it looks like it's in excess of six hours of barking by this dog, for no apparent purpose that I have. We don't have any testimony other than supposition, and I'm not going to make my decision on supposition, that there may have been a predator somewhere in the world there. That's not going to fly.”

The appellate court concluded that the trial judge was wrong to feel as he had.  Perhaps the trial judge had never been near an outdoor kennel full of beagles trained to hunt when a coyote is in the neighborhood.    

To the same effect was a 2006 New York case, Groat v. Brennan, 831 NYS2d 353 (2006), where Great Pyrenees were used to guard alpacas.  The court stated:

“The record shows that Great Pyrenees dogs have been considered a major benefit to herding agriculture for over 1,000 years. The record also supports a finding that the immediate area of the Serino farm does have coyotes, and that while the Serinos did not lose any alpacas to predation prior to acquiring the dogs, alpacas are very susceptible to such attacks. It is further noted that the type of alpacas kept by the Serino respondents are valued at between $10,000 and $15,000 each. Thus, the loss of even a single alpaca would be very significant. It is thus clear that the use of Great Pyrenees dogs to guard livestock is an effective and very longstanding agricultural practice.”

Here there was a significant question as to whether the dogs were barking that much in any case.  They appear to have only barked at night, and were often no louder than many ambient noises in the area. Predators are for the most part nocturnal.

These cases at least acknowledge that livestock guarding dogs often operate without handlers who can stop them from barking.  Barking is a deterrent to predators.  If dogs can bark despite the nuisance aspect of the sound, it must be accepted that they will do so when their protectiveness leads to bites.  Should owners train the dogs to attack predators but not attack people, even if people are threatening? Sheep rustlers, more common with the rise in lamb prices, is a real threat.  Is teaching guarding dogs not to react to people even practical?  Some degree of acclimation to humans may help, but too much familiarity is likely to reduce the protective aggressiveness required for the dogs to drive away prey animals. 

Interbreeding of Wolf and Shepherd Dog Populations in Georgia

Republic of Georgia (U.S. State Department)
Some analysis of the history of livestock guarding may also add perspective.  Four researchers from Ilia State University in Georgia (Kopaliani et al., 2014) have found that hybridization between wolves and livestock guarding dogs is a “common event in the areas where large livestock guarding dogs are held in a traditional way,” though such hybridization has probably declined since “humans started to more tightly control contacts of purebred dogs.”  Livestock guarding dogs are, according to these authors, widespread throughout Anatolia, the Caucasus, and mountainous parts of Iran, Iraq, and Turkmenistan.  The researchers found gene flow from dog to wolf populations and from wolves to shepherd dogs.  They note: 

“The majority of publications describing dog–wolf hybridization suggest that mating between male dogs and female wolves is more common than the other way around …. However, genetic analyses suggest that hybridization between male wolves and female dogs also occurs in nature …. The presence of dog maternal lineages in wolf populations … or sharing haplotypes between wolves and dogs can only be the result of such hybridization pattern: Female dogs can produce offspring both in the wild and in domestic conditions, whereas female wolves can breed mostly in the wild. Our study supports this point of view. Hybridization between male wolves and female dogs might happen both occasionally and deliberately: In mountain parts of Georgia, dogs are occasionally paired with captured wolves, which allegedly ‘improves the breed.’ In such deliberate hybrid occasions, both male and female wolves can participate. The latter case is the most likely explanation of shared haplotypes between dog and wolf.”

Thus, the interbreeding of wolves and dogs is not only accidental, but sometimes deliberate.  There was evidence of “recent wolf ancestry in more than 10% of shepherd dogs and recent dog ancestry in more than 13% of wolves.  Moreover, 2% of the studied wolves and 3% of dogs were, with a high probability, first-generation hybrids.”  The researchers note that studies of hybridization in Europe generally do not find such high levels of hybridization, probably due to the fact that in most of Europe dogs are more highly controlled.  They note:

“Large livestock guarding dogs, such as Great Pyranees, are not commonly used any more in a way that they can easily interbreed with wolves, but nobody can say to what extent they interbred with wolves in the past….   We hypothesize that the situation was much more flexible in earlier times, when most of the dogs used by common people were not subjected to intensive selection, similar to what is now the situation with livestock guarding dogs in the Caucasus and most likely the rest of West Asia. This means that interbreeding with gray wolves was an important part of the dog maintenance, and the situation was much more complicated than the simple pattern including Neolithic domestication with the further expansion of dogs descending from these early domesticated wolves.” 

The latter conclusion puts this research into the debates regarding domestication models, previously discussed here in other blogs. 

Interbreeding Wolves and Sheep Dogs in Antiquity  

Cylinder Seal Showing Sheep Dog with Double Collar, Lion, and Shepherd (Henri Frankfort, 1955)
The problem of aggressive livestock guarding dogs may be ancient.  Guarding sheep  is one of the earliest known functions of dogs, and is mentioned in Homer and the Book of Job.  Even in antiquity, there was concern that sheep guard dogs could become too vicious from intentional interbreeding with wolves.  The Mishnah, a Jewish text composed in the late second to the early third century, specifies in Kilaim 1.6 that the wolf and the dog, and the wild dog and the jackal [הזאב והכלב כלב הכופרי והשועל], are of diverse kinds, though they are similar. Merlen (1971) took this to mean that neighboring peoples were breeding dogs with wolves, presumably to produce more fearsome guard dogs, a practice the rabbis wanted to discourage among Jews, arguing that it was a violation of Leviticus 19:19 (“You shall not allow two different kinds of beasts to mate together.”). Kilaim 8.6 states that the dog is a kind of wild animal, though Rabbi Meir says it is a kind of cattle, i.e. domesticated. So breeding a dog with a wolf would be mixing a wild animal with a domesticated one. 

Perhaps these mixed dog-wolves were dangerous to travelers at a time when people walked the roads.  A Middle Eastern cylinder seal from before 1,000 BC shows a sheep dog attacking a lion so that the shepherd can put a spear in the lion’s back from the other side.  

Conclusion

There is no doubt that livestock guarding dogs are an essential part of the sheep industry.  A study of livestock guarding dogs in the French Alps concluded that up to 95% of kills by predators can be prevented by combining the use of livestock guarding dogs with a practice of penning sheep at night.  Espuno et al. (2010).

The prior blog on this matter suggested that the sponsors of the bike race should perhaps have verified that there were no livestock guarding dogs in the area.  The owners of the sheep should perhaps be careful to keep the sheep away from roads where bicyclists and hikers may be encountered.  The forest service should perhaps serve as an information conduit between groups that will overlap on their use of forest lands.  These, however, are planning points, not resolutions of the legal issues involved here. 

Perhaps general concepts of negligence should be applied.  Was it foreseeable that the sheep were grazing in an area where humans were likely to be encountered?  Was it foreseeable that the dogs were so estranged from humans that they would see any animals, including humans, as threats to the herds they were protecting?  Should the sponsors of the bike race be liable for not investigating the dangers that might lie on the path of the race?  Should the dog owners have been more aware of the aggressive tendencies of their dogs?  Should they have considered that deploying the two dogs together might have increased their aggressiveness?  Had the dogs, 9 and 11 years old, become more aggressive with age?

Again, such questions may resolve a dispute without really interpreting the statute or finding the legislative intent behind its creation.  In the end, we are of the opinion that the issue of control has to be based on the context of the training and function of livestock guarding, which means that if the dogs were trained to drive away and if necessary engage with prey animals, they must be allowed to do their work if the statute permits their existence at all.  Applying concepts of control that have been used with other types of trained and working dogs will not produce a practical result for the livestock industry.  The dogs were in the owner’s control if they acted within the parameters of their training and purpose. 

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

Sources: 

Blum, Karen A. (2001).  Saying “Neigh” to North Carolina’s Equine Liability Act.  North Carolina Central Law Journal, 24, 156 (discussing use of llamas to protect sheep: “llamas are extremely effective guard animals. One llama can protect up to 2000 sheep. Although llamas cost more than dogs, they cost less to maintain because llamas eat the same food and receive the same vaccines as sheep.”).

Espuno, Nathalie, Lequette, Benoit, Poulle, Marie-Lazarine, Migot, Pierre, and Lebreton, Jean-Dominique (2010).  Heterogeneous Response to Preventive Sheep Husbandry During Wolf Recolonization of the French Alps.  Wildlife Society Bulletin, 32(4), 1195-1208. 

Fisher, Kristina Gray (2008). Reclaiming Querencia: The Quest for Culturally Appropriate, Environmentally Sustainable Economic Development in Northern New Mexico.  Natural Resources Journal, 48, 479 (New Mexico farmers bought livestock guard dogs from the New England Farm Center in Amherst, Mass., which reduced sheep losses from 45% to 12% in one summer).  

Frankfort, H. (1955). Stratified Cylinder Seals from the Diyala Region.  The University of Chicago Oriental Institute Publications, LXXII. University of Chicago Press, Chicago.  (The interpretation of the dog as assisting the shepherd is mine, not Frankfort's.  Frankfort describes that lion as being "driven off in the nick of time with a spear, while his dog has growlingly retired before the formidable robber."  I doubt that either humor, or cowardice, is being depicted here.  Rather, I believe the seal shows their cooperation.)

Kopaliani, Natia, Shakarashvili, Maia, Gurielidze, Zurab, Qurkhuli, Tamar, and Tarkhnishvili, David (2014).Gene Flow Between Wolf and Shepherd Dog Populations in Georgia (Caucasus). Journal of Heredity, 105(3), 345-353. DOI: 10.1093/jhered/esu014.

Lorenz, Jay, and Coppinger, Lorna (2002). Raising and Training a Livestock-guarding Dog, Oregon State University Extension Service.

Merlen, R.H.A. (1971). De Canibus. J.A. Allen & Co. Ltd., London, 38.

Randi, Ettore, Hulva, Pavel, Fabbri, Elena, Galaverni, Marco, Galov, Ana, Kusak, Josip, Bigi, Daniele, Bolfikova, Barbora Cerna, Smetanova, Milena, and Caniglia, Romolo (2014).  Multilocus Detection of Wolf x Dog Hybridization in Italy, and Guidelines for Marker Selection.  PLOS One, 9(1), e86409 (looking at dogs and wolves in Italy, the Balkans, and the Carpathian Mountains, and finding hybridization “mostly attributable to village dogs and not strictly patrilineal.”  Not finding many F1 or F2 hybrids, the team says that their results suggest “that hybridization events already occurred in Italy some generations in the past.”).

Strack, Hermann L., and Billerbeck, Paul (1922) Das Evangelium Nach Matthäus.  Munich: C.H. Beck’sche Verlagsbuchhandlung (noting, at 722, the use of the term “village dog”, “Dorfhunde” in German).    

Once a Companion to the Sun God, the Mexican Wolf Now Faces Extinction

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Proposed Mexican Wolf Experimental Population Area (revised July 2014)
The U.S. Fish & Wildlife Service has announced additional changes to rules it initially proposed in June 2013regarding the Mexican Wolf Experimental Population Area.  This is an area where the seriously threatened population of Mexican wolves is to be protected.  It is not likely that the expansion of the area now being proposed by the agency will actually improve the chances of survival for this subspecies of the gray wolf, but it is a step in the right direction. 

Before providing some detail about the proposed changes, it is appropriate to say something about this animal that is now considered a subspecies of the gray wolf.  The subspecies designation is recent, but this wolf’s history includes a thousand years of special status in pre-Columbian cultures during which they were sometimes kept for ritual purposes, perhaps as sacrifices to the sun god as representatives of his companion across the void of night. 

Canis lupus baileyi

Vernon Bailey, 1898 (Smithsonian Archives, Wikipedia)
In 1931, Vernon Bailey (1864-1942) described the Mexican wolf as a “rather small dark-colored wolf, in summer dully tawny, and in winter coat yellowish gray, heavily clouded with black over back and tail.  The skull is smaller and slenderer than the larger, lighter colored wolf of the Great Plains region.”  Adults are on average about five feet long and weigh between 50 and 90 pounds, with a shoulder height between two and two and a half feet.  

Bailey found many of these wolves far from typical and said that some “show evident gradation into the larger, paler wolf of the Great Plains region.” (The wolf was named after Bailey by two of his colleagues at the U.S. Biological Survey, Edward Nelson and Edward Goldman, who described the wolf as a separate subspecies in the Journal of Mammalogy in 1929.)  Genetic analysis (Garcia-Moreno et al. 1996; Leonard et al. 2005) has concluded that Mexican wolves are “the most distinct grouping of gray wolves,“ supporting their designation as an endangered subspecies.

Bailey described the Mexican wolf’s range in the United States as “mainly within the Upper Sonoran and the Transition Zones, and their greatest abundance has long been in the open grazing country of the Gila National Forest.”  Fish & Wildlife includes Mexico in its range description:

“Mexican wolves historically inhabited montane woodlands and adjacent grasslands in northern Mexico, New Mexico, Arizona and the Trans-Pecos region of western Texas ... at elevations of 4000-5000 ft. where ungulate prey were numerous …. The subspecies may have also ranged north into southern Utah and southern Colorado within zones of intergradation where interbreeding with other gray wolf subspecies may have occurred…. The southernmost extent of the Mexican wolf’s range in Mexico is consistently portrayed as ending near Oaxaca…. Mexican wolves in Arizona and New Mexico inhabit evergreen pine-oak woodlands (i.e., Madrean woodlands), pinyon-juniper woodlands (i.e., Great Basin conifer forests), and mixed conifer montane forests (i.e., Rocky Mountain, or petran, forests) that are inhabited by elk, mule deer, and white-tailed deer.”

Bailey wrote as early as 1906 that these wolves were a problem for local stockmen.  While camped at the head of the Mimbres River, Bailey reported that he “could count on about four wolves passing his station every two or three nights.” Occasionally he encountered bands of six or eight or even more.  Interbreeding with dogs was also occurring:

“In this rocky country they were traveling almost entirely in the trails and roads to save their feet from the sharp, stony surface outside. They had little fear of the ranches and often passed close to the buildings and killed stock as freely within the pasture as outside. At one ranch on the Mimbres below camp several wolves had been shot in the pasture from the house. A huge black, half wolf and half dog, which was kept chained in the corral at the Mimbres store, had been raised from a large mongrel bitch that had been visited by a male wolf at night, and this only remaining member of her litter was unmistakably as much wolf as dog, except for the color. It was a savage brute and considered too dangerous to run at large.”

Bailey reported that “they had no trouble in finding cattle of any age or condition,” which they preferred to deer, “which are more nimble and not so easily caught.”  Occasionally they ate jack-rabbits.  Bailey reported that the wolves were particularly active at night:

“At night they make long trips into distant localities where they make their kills. When the young are small the food is always swallowed and later disgorged at the den for the little fellows. The food is thus partly masticated and is more easily digested. As the pups become stronger, large pieces of calves and yearlings, as well as antelope and other game, are carried to the den. The heads of calves and game animals, as well as other bones, are brought in great numbers, no doubt chiefly for the young to play with and for the necessary development of teeth and jaws.”

Days are quieter:

“They generally lie about the den during the day and keep a close watch. In leaving the den on the approach of man, they will usually move off over the highest points in order to command a back view. They very often howl when their young are approached or molested. Both young and old wolves sleep much in midday, but at other times they are very active.”

Bailey Notes on Photograph (Smithsonian archives, Wikipedia)
As to where the animals construct burrows, Bailey said that in “rough country they are generally found in a crevice or natural cavity, usually in the rim of a mesa. Even where there are suitable places among the rocks, badger burrows are often enlarged to the desired size and depth. Sometimes the den is prepared under the roots of an upturned tree, and it is common to find the young in holes in solid rock, where they can be obtained only by blasting.”

As indicated by the previous sentence, despite his devotion to biology, Bailey was not concerned with preserving all members of the species.  Nevertheless, he did not believe they should suffer in being caught.  A photograph with Bailey’s hand-written notes, taken from papers now in the Smithsonian, indicates his concern with steel traps.  The current regulations prohibit certain traps, such as neck snares. Traps now also to be “appropriately sized,” so that an Interagency Field Team can arrange for radio-collaring and releasing the wolf. 50 CFR 17.84(k)(5)(iii)(C)

In 1916, J. Stokley Ligon (1879-1961), who worked for the U.S. Biological Survey, estimated that a single adult wolf costs ranchers between $1,200 and $1,500 per year (up from $25,000 in present dollars).  Bailey wrote that forest guards, rangers, and local and outside trappers were all killing the wolves, such that by the 1920s they had become so rare that they “were too scattered to make professional trapping for the bounty profitable.” 

Numbering in the thousands before European settlement, there were only dozens of Mexican wolves left by the 1930s. 

Wolf Mural, Teotihuacan, Atetelco Compound (Wikimedia)
Wolves at Teotihuacan

The Mexican wolf was well known to pre-Columbian cultures.  Archeologists excavating pyramids at Teotihuacan, a site 25 miles north of Mexico City, have concluded that the inhabitants bred wolves with dogs, which were used in rituals and eaten, as the bones at excavations display cut marks.  Some bones were cooked but the heads and faces could be used for priest and warrior attires.  

The burials date from the 7th to the 16th centuries AD, but most were dated from 600 to 950 AD.  Pumas may also have been bred in captivity for ritual purposes.Sugiyama (2013) notes that such carnivores “dominated the landscape and their status as top predators no doubt added to their symbolic value.”  Animal burials in tunnels, passages to the underworld, included wolves, coyotes, dogs, and wolf-dog hybrids. The hybrids were not as large as Mexican wolves, but morphology suggests they were bred from Mexican wolves. 

Domus Animalium, 1524 Nuremberg Manuscript
Analysis of strontium and zinc in the bones of hybrids establishes that they had a primarily herbivorous diet, suggesting that they did not roam freely but were kept in captivity and fed by humans who gave them only minimal access to meat.  Dogs, in contrast, seem generally to have had more meat in their diet.This suggests to Valadez et al. (2002), in a particularly elegant piece of archeological research, that the hybrids were kept isolated for ritual purposes.  Chronicles of later peoples, such as the Aztecs, say dogs ate the same food as people but were not given raw meat because of a belief that this would make them too aggressive.  The animals were oriented to the west in the Teotihuacan burials, which is interpreted by Valadez et al. (2002) as likely meaning that they were sacrificed in rituals concerning the passage of the sun.  Xolotl, an Indian god with a dog shape, was the sun’s night companion.  Xolotl may have been conceived of as a wolf, but the hybrids were more tractable and could accompany humans in rituals just as Xolotl accompanied the sun. Dog skeletons found in quarry tunnels at Teotihuacan were described by Manzanilla et al. (1996) as  perhaps being "conceived as guides to the underworld." The universal nature of dogs as guides to the underworld was the subject of a blog about Anubis and Cerberus several years ago

Not all websites designate the Teotihuacan mural shown here as being of a wolf as Valadez et al. do.  I have found at least one that called it a leopard.  I find it easiest to think of the figure as that of a canid by imagining it without the headdress and the feather-like rows above the back and behind the tail. I do not presently know if there is any speculation about the possibility that the depiction might show a wolf wearing something of a costume, with a headdress.

There is evidence that the Teotihuacans and other pre-Columbian cultures maintained buildings where wild animals were kept, the best known of which is the House of the Animals (domus animalium) in the Aztec capital.  The structure is labeled on the Nuremberg map of Mexico City published in 1524, and was adjacent to the central plaza of the city. Its function for the Aztecs was at least partially to be a zoo for entertainment, but being near the temple complex, the animals may have been fed on the torsos of sacrificial victims. The House of the Animals is labeled in the lower left of the portion of the map reproduced above.  The animals, mostly birds, are in square cubicles below the label.       

Florentine Codex, Book VIII
Evans (2000) says the Mexico City zoo-aviary complex “had specimens from all over Mexico, and sculpted images of varieties that could not survive in the Central Highlands.  These were made of stone and precious metals, and recall Tenochtitlan's precious metal 'House of Birds'….”  This complex was taken over by the Franciscan order in 1529, as St. Francis of Assisi’s love of animals made this an appropriate syncretism.  Brother Bernardino de Sahagun described caregivers for holding the animals of the forest, including jaguars, wolves, mountain lions, and bobcats (cuidadores de animals silvestres, jaguares, lobos, leones de montana, linces). The figure from the Florentine Codex shows what may be a caregiver with various birds and wild animals. 

Beginning of Protection for the Mexican Wolf

The Mexican wolf was listed as an endangered subspecies in 1976 (41 Fed. Reg. 17740, April 28, 1976), followed in 1978 by listing the entire gray wolf species in North America south of Canada as endangered, except in Minnesota where the designation was threatened (43 Fed. Reg. 9607, March 9, 1978).  The 1982 Mexican Wolf Recovery Plan called for establishing a captive breeding program along with reintroduction of wolves to the wild. Breeding programs were conducted at locations such as the Sevilleta Wolf Management Facility south of Albuquerque.  The Fish & Wildlife photograph shows the fenced areas of the Facility. 

Sevilleta Wolf Management Facility (FWS)
Wayne and Hedrick (2011) state that all "Mexican wolves alive today descend from three captive lineages founded between 1960 and 1980 from a total of seven wolves.”   In 1998, 13 Mexican wolves were reintroduced to the wild near the border between New Mexico and Arizona.  Although, the population had begun to increase, there were still only 42 wolves in the area in January 2010, in part because 32 wolves had been illegally killed.  Wayne and Hedrick state that only two killers were identified and successfully prosecuted.  Many animals were also removed from protected areas due to depredation claims (after which they may be kept for a time in places like the Sevilleta Facility).  These researchers state:

“Given expected rates of wolf removal and killing, we suggest that for recovery of Mexican wolves three populations, each simultaneously having 250 animals for 8 years (approximately two generations) is the minimum necessity.”

They suggest that Mexican wolves could also be introduced to the north rim of the Grand Canyon and certain Northern New Mexico and Southern Colorado sites.  This suggestion was not taken up by the Fish & Wildlife Service. The Interagency Field Team estimated that there were 83 Mexican wolves in the wild in 2013, up from 75 in 2012.  It is not clear if such numbers would be accepted by other conservation scientists.

Carroll et al. (2013) note that “a population derived from inbred and interrelated founders generally must have a larger census population size than a population derived from outbred and unrelated individuals.”  Because the Mexican wolves now in the wild come from such a small number of founders, this group says that “viability of the existing wild population is uncertain unless additional populations can be created and linked by dispersal….”  Nevertheless, the models of this research group give reason to hope that the Mexican wolf may indeed survive. 

Proposed Enlargement of Experimental Population Area

The changes now proposed by Fish & Wildlife involve expanding the areas within which Mexican wolves can be released, and in which they can disperse and occupy, extending the southern boundary of the MWEPA from I-10 to the Mexican border in New Mexico and Arizona, and changing some definitions and rules regarding when wolves can be taken while attacking livestock and non-feral dogs or to manage ungulate populations.  Livestock is defined in a draft environmental impact statement as cattle, sheep, horses, mules, burros, llamas, and alpacas. For purposes of the proposal: “Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”  An “unintentional take” is coincidental to an otherwise lawful activity, so it does not include poisoning or shooting.  “Harass” is defined as “intentional or negligent actions or omissions that create the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering.”

Attaching Radio Collar (2013 Draft Environmental Impact Statement)
The changes are most easily explained by reference to the zones in the map reproduced at the beginning of this blog.  Zone 1 is where Mexican wolves can be released or translocated.  Translocation is the release of Mexican wolves into the wild that were previously in the wild, and may involve giving the animal a radio collar. This Zone contains the Apache, Gila, and Sitgreaves National Forests, as well as parts of the Tonto and Cibola National Forests.  

Zone 2 is where Mexican wolves would be allowed to disperse naturally, and where Mexican wolves may be tranlocated.  On federal land in Zone 2, initial releases would be of pups less than five months old.  On private and tribal lands in Zone 2, Mexican wolves of any age can be released, but there must be a state-approved agreement with private landowners or a Fish & Wildlife-approved agreement with tribal agencies.  Thus, private landowners may collectively be able to limit such releases of wolves in the areas of their ranches. 

Neither initial releases nor translocations are to occur in Zone 3, but Mexican wolves will be allowed to disperse and occupy this area.  The preamble to the 2014 proposal describes this Zone as “an area of less suitable Mexican wolf habitat and where wolves will be more actively managed….” Zone 3 is not contiguous as part of it is in western Arizona and part is in eastern and southern New Mexico. 

Fish & Wildlife explains that it is extending the southern boundary of the MWEPA to the Mexican border because the Mexican Government is attempting to reintroduce Mexican wolves, which may disperse north into southern Arizona and New Mexico. 

Predator Damage Management

The new proposal provides that USDA employees involved in predator damage management may take Mexican wolves under certain circumstances.  Owners of domestic animals, including livestock and pets, may take Mexican wolves in the act of biting, killing, or wounding a domestic animal.  If there is a pattern of livestock or pet kills by Mexican wolves, and Fish & Wildlife or an agency or party designated by it has failed to stop the problem, Fish & Wildlife can issue a permit to a domestic animal owner or to an owner’s employees or land manager, or to local officials, to take Mexican wolves, including allowing permit holders to harass and kill the wolves.  “Permits issued under this provision will specify the number of days for which the permit is valid and the maximum number of Mexican wolves for which take is allowed.”

Livestock Guarding Dogs

The 2013 proposal provided that throughout the MWEPA, Mexican wolves could be taken by livestock guarding dogs “when used in the traditional manner to protect livestock on public, tribal, and private lands.”  The July 2014 proposal retains this, though the reporting mechanism for such a take is now more specific.  Whereas the 2013 proposal said that such a take “must be reported to the Service’s Mexican Wolf Recovery Coordinator or a designated representative of the [Fish & Wildlife] Service within 24 hours,” the new proposal provides the following on when and where a take of a Mexican wolf must be reported:

Illegally Killed Wolf with Radio Collar (2013 Draft Environmental Statement)
“Unless otherwise specified in this rule or in a permit, any take of a Mexican wolf must be reported to the Service or a designated agency within 24 hours. We will allow additional reasonable time if access to the site is limited. Report any take of Mexican wolves, including opportunistic harassment [as opposed to intentional or planned harassment], to the Mexican Wolf Recovery Program, U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office, 2105 Osuna Road, NE., Albuquerque, NM 87113; by telephone 505–761–4748; or by facsimile 505–346–2542. Additional contact information can also be found on the Mexican Wolf Recovery Program’s Web site at http://www.fws.gov/southwest/es/mexicanwolf/.  Unless otherwise specified in a permit, any wolf or wolf part taken legally must be turned over to the Service, which will determine the disposition of any live or dead wolves.”

Hybrids and Feral Dogs

The proposed rules allow Fish & Wildlife or any designated agency to “capture; kill; subject to genetic testing; place in captivity; or euthanize any feral wolf-like animal or feral wolf hybrid found within the MWEPA that shows physical or behavioral evidence of: Hypbridization with other canids, such as domestic dogs or coyotes; being a wolf-like animal raised in captivity, other than as part of a service-approved wolf recovery program; or being socialized or habituated to humans.” Nevertheless, if a canid is “determined to be a pure Mexican wolf, the wolf may be returned to the wild.” For a subspecies of wolf close to extinction, the latitude given officials to shoot first and conduct tests later is disturbing.  A more careful set of criteria should be drafted. 

Protecting Wild Ungulates

If Arizona or New Mexico determines that Mexican wolf predation is having an impact on wild ungulate herds—herds of pronghorn and bighorn sheep, deer, elk, and bison, the state may request approval from Fish & Wildlife to remove wolves from the area of the ungulate herd. Approval allows the state to capture and translocate wolves inside the MWEPA.  Occasionally approval may be granted to a state to kill wolves in such circumstances. Granting such requests very often will probably doom the reintroduction program.

Conclusion

Mexican Wolves (FWS)
Wayne and Hedrick (2011) observe that in the U.S., “wolf conservation policy and management has often been schizophrenic, ranging from predator control and open hunting to reintroduction and absolute protection.”  This schizophrenia is particularly evident with the Mexican wolf, which even Bailey, the naturalist whose name was given to the subspecies, helped eradicate from parts of New Mexico in the early 20th century.    

I believe that ranchers have the right to protect their flocks, so I hope that that these wolves will be content with bighorn sheep, deer, and other game that was theirs to hunt before the domestic herds arrived.  The extension of the wolf population area south to the Mexican border may allow some of the wolves reintroduced in northern Mexico a place to live, but only greater efforts than have been made so far will assure the survival of this wolf.    

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

Sources:

Bailey, Vernon (1931). Mammals of New Mexico. Washington, DC: USDA Bureau of Biological Survey.

Blanco, A., Perez, G., Rodriguez, B., Sugiyama, N., Torres, F., and Valadez, R. (2009). El Zoologico de Moctesuma: Mito o Realidad? Asociacion Mexicana de Medicos Veterinarios Especialistas en Pequenas Espedes-AMMVEPE, 20(2), 28-39.

Boone, Elizabeth Hill (2011). This New World Now Revealed: Hernan Cortes and the Presentation of Mexico to Europe. Word & Image, 27(1), 31-46 (noting that the zoo, Domus animalium, was a great curiosity to the Spaniards).

Brown, D. E. 1983. The Wolf in the Southwest: The Making of an Endangered Species. Tucson: University of Arizona Press.

Carroll, C., Phillips, M.K., Lopez-Gonzalez, C.A., and Schumaker, N.H. (2006). Defining Recovery Goals and Strategies for Endangered Species: The Wolf as a Case Study.  BioScience, 56, 25-37. 

Carroll, C., Frederickson, R.J., and Lacy, R.C. (2013).  Developing Metropopulation Connectivity Criteria from Genetic and Habitat Data to Recover the Endangered Mexican Wolf.  Conservation Biology, 28(1), 76-86.

Department of the Interior, Fish and Wildlife Service.  Endangered and Threatened Wildlife and Plants; Proposed Revision to the Nonessential Experimental Population of the Mexican Wolf, RIN 1018-AY46, 79 Federal Register 43358 (July 25, 2014).

Evans, Susan Toby (2000).  Aztec Royal Pleasure Parks: Conspicuous Consumption and Elite Status Rivalry. Studies in the History of Gardens and Designed Landscapes, 20(3), 206-228.

Fredrickson, R.J., Siminski, P., Woolf, M., and Hedrick, P.W. (2007).   Genetic Rescue and Inbreeding Depression in Mexican Wolves.  Proc. R. Soc. B., 274, 2365-2371.  DOI:10.1098/rspb.2007.0785 (finding “there is still potential to establish vigorous wild populations”).

Garcia-Moreno, J., Matocq, M.D., Roy, M.S., Geffen, E., and Wayne, R.K. (1996).  Relationships and Genetic Purity of the Endangered Mexican Wolf Based on Analysis of Microsatellite Loci.  Conservation Biology, 10(2), 376-389. 

Hedrick, P.W., Lee, R.N., and Parker, K.M. (2000). Major Histocompatibility Complex (MHC) Variation in the Endangered Mexican Wolf and Related Canids.  Heredity, 85, 617-624 (“combining the three Mexican wolf lineages (adding the Ghost Ranch and Aragon lineages to the McBride lineage) would increase  genetic variation in the captive population.”).

Leonard, J.A., Vila, C., and Wayne, R.K. (2005). Legacy Lost: Genetic Variability and Population Size of Extirpated US Grey Wolves (Canis lupus).  Molecular Ecology 14, 9–17.

Manzanilla, Linda, Lopez, Claudia, and Freter, AnnCorinne (1996). Dating Results from Excavations in Quarry Tunnels behind the Pyramid of the Sun at Teotihuacan.  Ancient Mesoamerica, 7, 245-266.  

Mundy, Barbara E. (1998). Mapping the Aztec Capital: The 1524 Nuremberg Map of Tenochtiltlan, Its Sources and Meanings. Imago Mundi, 50, 11-33 (giving Monteucsoma gardens and zoos put him in a context Europeans would understand).

Nelson, E. W. and Goldman, E. A. (1929), A new wolf from Mexico, Journal of Mammalogy, 10, 165–166.

Wolf Pups at Sevilleta Wolf Management Facility  (FWS)
Parsons, D.R. (1996). Case Study: The Mexican Wolf.  In New Mexico’s Natural Heritage: Biological Diversity in the Land of Enchantment.  New Mexico Journal of Science, 36, 101-123. 

Sugiyama, N. (2013).  Animal Management, Preparation and Sacrifice: Reconstructing Burial 6 at the Moon Pyramid, Teotihuacan, Mexico.  Anthropozoologica, 48(2), 467-485.

Sugiyama, Nawa, Sugiyama, Saburo, and Sarabia, Alejandro (2013). Inside the Sun Peryamed at Teotihuacan, Mexico: 2008-2011 Excavations and Preliminary Results. Latin American Antiquity, 24(4), 403-432 (noting wolf skull found in offering chamber of sun temple).

U.S. Fish & Wildlife Service, Southwest Region (201). Mexican Wolf Conservation Assessment.
U.S. Fish & Wildlife Service, Southwestern Regional Office, Mexican Wolf Recovery Program (Augus 2013). Environmental Impact Statement for the Proposed Revision to the Nonessential Experimental Population of the Mexican Wolf (Canis lupus bileyi) and the Implementation of a Management Plan: Preliminary Draft.

U.S. Fish & Wildlife Service Public Affairs Office (July 2014). FAQs: Proposal to Revise Mexican Wolf 10(j) Rule: Frequently Asked Questions.

Valadez, Raul, Rodriguez, Bernardo, Manzanilla, Linda, and Tejeda, Samuel (2002). Dog-wolf Hybrid Biotype Reconstruction from the Archaeological City of Teotihuacan in Prehispanic Central Mexico.  9th ICAZ Conference, Durham 2002.  Dog and People in Social, Working, Economic or Symbolic Interaction (Snyder, L.M., and Moore, E.A., eds).

Wayne, R., and Hedrick, P. (2011). Genetics and Conservation in the American West: Lessons and Challenges.Heredity, 107(1), 16-19.

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

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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 travelersexplains 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 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 indicates 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.”

Conclusion

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 be cited in cases where the entity denying admittance is covered by the Americans with Disabilities Act, not the ACAA.  The negligent training and supervision claims will also 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. 

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

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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 

Bomb Dogs Work Faster When Handlers Are Distracted

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The relationship between the handler and a detection dog is often of concern because of the possibility that the handler’s thoughts or feelings as to the presence of a target substance may result in a signal to the dog that it is time to alert, a phenomenon known as cueing.When typical drug-related criminal activity is suspected, the handler may intentionally signal the dog to give a trained final response so that probable cause for further action is established.  More often the concern has been that the handler may not be aware that his beliefs are leading to subtle behavioral changes in his management of the dog that result in the dog giving an alert.  (See Cueing and Probable Cause.)Yet the handler’s mental state may influence a working dog’s effectiveness in other ways, as indicated by recent research from Israel. 

A team of ten scientists from the Behavioural Neuroscience Lab at the Rappaport Faculty of Medicine in Haifa considered how putting stress on handlers affected the performance of explosives detection dogs.  For purposes of the study, the team sought to distinguish between two possible types of handler stress: external stress, which was defined as stress irrelevant to the task of the canine team, and internal stress that was relevant to the task.  The team studied five Malinois and their handlers working in the Israeli Air Force.  The dogs had been in service about six months, but each handler had at least a year of experience with the dog to which he was assigned.  Salman Zubedat, Shlomit Aga-Mizrachi, Adi Cymerblit-Sabba, Jonathan Shwartz, Joseph Fiko Leon, Shlomo Rozen, Itay Varkovitzky, Yuval Eshed, Dan Grinstein, and Avi Avital (2014).  Human-Animal Interface: The Effects of Handler’s Stress on the Performance of Canines in an Explosive Detection Task.Applied Animal Behaviour Science, 158, 69-75.

Experimental Design

To provide a baseline on the level of stress in a handler, a pre-pulse inhibition test was given both before the handler was put in a stressful situation and after a trial was completed.  External stress came from a three-minute conversation with the handler’s unit commander.  After the conversation, a task was performed in which the dog could identify two explosive odors.  In training sessions, however, dogs could detect 1, 3, 4, 5, or 6 explosive odors.  When the dog sat next to a hot spot, it was allowed to play with a ball as a reward. 

The search area was long and narrow, a 50 meter line with a two meter width, which teams were given no more than five minutes to search.  The unusual search area may have been chosen to duplicate a street in a dense urban environment where explosive devices might be hidden in buildings against the street or in items like carts along it.  Alerts, false alerts, and misses were to be measured, though no false alerts or misses were recorded (which says a great deal for Israeli military dogs).  Consequently, differences in performance levels of teams were established by measuring the energy levels of the dogs and the time intervals for the trials. 

An experimenter hid the explosives before a trial so that the handler and other staff were blind to the location of explosives.  Hides were placed in different orders relative to the exploration direction of the dogs.  Sites were explored from different directions by the teams so as to limit the effect of possible contamination, though the paper says that the “location of the hidden explosives remained constant between the different test days.” (This may have been a design flaw as the amount of odor available to the dog would tend to increase over the period of the experiment.) An alert consisted of the dog sitting near the hot spot and poking its nose towards the exact location of the hide.  Trials were videotaped.

Applying Stress

Internal stress consisted of having external viewers, commanders, and study executives present during trials.  These participants pointed at the handler as he walked the long and narrow search area and pretended to write down comments during the trial.  External stress, the three-minute conversation, consisted of the commander informing the handler that he would be reassigned to another military unit, that the handler was going to face a military investigation, or something else designed to rattle the handler.The handler was ordered not to share the conversation with anyone.At the end of the trial, the handler was told that the stressful information had been revoked, but that the handler still should not share the information.

The external stress condition (“You’re facing an investigation,” etc.) “led to the highest startle response compared with the control and the ‘internal stress’ conditions.” When handlers were under external stress, the dogs had the shortest, and thereby most efficient, detection times.  External stress was also correlated with the highest levels of canine activity.  As measured by the PPI test, stress on the handlers impaired their covert attention, and external stress produced the highest impairment of the two types. 

As to what explained this unexpected finding, the research team hypothesized:

“We postulate that the stress disturbed the handlers in their focus of attention and thus led to less control of the dogs’ leash. Consequently, it allowed the dogs to manifest their training outcome in a less ‘handler-dependent manner’. This presumable locus of control transfer may explain the improved performance of the dogs.”

Conclusion

The importance of explosive detection dogs in Israel may be indicated by the size of the team involved in this study. A photograph from a recent military operation shows the value that the Israeli military assigns to the protection and care of military dogs. 

The results might have differed had the search area been wider so that the sweep would have required crisscrossing.  Although training sessions could involve various numbers of hides, the scientists chose to use only two hides and perform limited recorded trials.  Having people, including supervisors and other officials, watch the trials might be more stressful for some handlers than others. Different ways of applying stress should be explored since a major difference between the two types of stress was when they occurred in relation to a trial.  Implementing variations on the experimental design will be important to verify the conclusions reached by this team. 

Still, the situations presented are clear enough, and the general nature of the findings is quite credible.  A handler with his own problems is less likely to be interested in cueing his dog to alert since he may not want to spend time dealing with a more detailed search or the resultant paperwork from a situation of his own making.  Thus, the research might have applications in a wider range of canine operations. 

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

Note on the photograph: This picture was provided by a friend in Israel, who advises us that it was sent anonymously from Gaza to an Israeli television station.  This apparently gave the station license to use the picture without giving the station the right to license (or preclude) our reproduction of it here. We believe it may have been reproduced elsewhere.  The anonymity may mean the photographer does not wish to acknowledge the context or is prevented by Israeli military law from asserting ownership.  If, however, someone believes the usage here violates an interest in the work, it will be removed on a credible claim of superior rights.  Anyone wishing to communicate with us regarding a claim as to the rights of the picture is asked to send an email to jensminger@msn.com.

Centers for Disease Control Seeks Funding for PTSD/Service Dog Study

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The Centers for Disease Control and Prevention is seeking approval from the Office of Management and Budget to fund “a laboratory-based work-simulation study” that will “investigate the influence of the presence of and interactions with a dog on the reactivity and performance of veterans with and without PTSD to work-related and startle stressors.”  The study will be conducted at a research facility of the National Institute for Occupational Safety and Health (NIOSH) in Morgantown, West Virginia.  The CDC’s announcement that it is seeking funding for the study was posted in the Federal Register on September 9 (79 Fed. Reg. 53430). 

The proposed study is described as follows:

“The role of dogs in potentially moderating the effects of the stressors will be investigated with either the absence or presence of a dog in some conditions and a dog that is either familiar or unfamiliar to the veteran in other conditions. The general working hypothesis is that the presence of, and/or interaction with, a familiar dog reduces stress and enhances work performance for both veterans with and without PTSD, with a greater benefit to veterans with PTSD.”

The  CDC announcement mentions therapy dogs, which perhaps means that when a dog unfamiliar to the veteran is used during some of the trial circumstances, therapy dogs will be used.  The kinds of symptoms that dogs may be useful in alleviating are listed as “diminished interest or participation in significant activities, feelings of detachment or estrangement from others, difficulty falling or staying asleep, hyper vigilance, exaggerated startle response, difficulty with concentration or attention, and a restricted range of affect.”

The CDC expects to recruit U.S. veterans for the study, including veterans with service dogs, by getting help from various veterans’ organizations.  About 400 persons in veterans’ agencies will receive emails concerning the research study, with follow-up phone calls.  Veterans will have to complete some questionnaires that will be posted on the internet, and those selected from this stage will go through several days of assessment sessions at the NIOSH Morgantown facility. Screening forms will include:
From the initial pool, 64 veterans will be enrolled in the laboratory portion of the study, including at least 16 veterans who own service dogs.  On entering the study, veterans with service dogs will complete the following materials: 
  • Big Five Inventory (BFI) 
  • Canine Behavioral Assessment and Research Questionnaire (CBARQ)
  • Pet Attachment and Life Impact Scale (PALS) 
  •  Dog Personality Scale (DPQ)   
  •  Social Style-Self and Social Style-Service Dog questionnaires
There will be no cost to participants other than giving their time. 

The CDC is probably hoping to find evidence that service dogs are helpful to veterans, but acknowledges that no particular outcome is certain:

“A review of mostly anecdotal evidence suggests that animal-assisted interventions may have general therapeutic benefits for individuals with PTSD. Although a few reports tout the benefits of human-animal companionship, no studies have focused specifically on investigating the elements of human-animal interactions that might be therapeutic for individuals with PTSD or other stress-related disorders. Furthermore, there is scant evidence supporting the notion that service dogs or therapy dogs may directly improve functioning and, thereby, ease an individual’s reintegration into society and employment.”

While most studies on the benefits of therapy dogs are rather anecdotal, research in the area is becoming more rigorous, as noted here in a recent blog

Anyone, including members of the general public, can obtain more information on the project by calling (404) 639-7570.  Comments can be sent to Leroy A. Richardson, 1600 Clifton Road, MS-D74, Atlanta, GA 30333.  An email can be sent to omb@cdc.gov.  Mr. Richardson is a Chief in the CDC’s Information Collection Review Office in Atlanta.  Written documents should be received within 60 days of the Federal Register announcement, i.e., by November 8. 

Detecting Fecal Contaminants on Produce, a New Occupation for Sniffer Dogs

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My wife and I recently flew from Paris to Atlanta.   While we were waiting to pick up our luggage to go through customs, a handler with a beagle began to walk beside the carousel, sniffing bags that had been removed from it by passengers.  I assumed at first the beagle was a drug dog, then noticed the screen suspended above the carousel, which actually showed a short film about the beagle. There was no sound, but the film was subtitled, like a silent movie.  “What is the beagle doing?” the screen asked.  Then there were pictures of various food items—a head of lettuce, a bunch of radishes, a package of meat.  Then X’s crossed out each item to let anyone watching know that these items were forbidden.  The dog was shown sniffing a suitcase and sitting down in front of it and looking at the handler.  The suitcase was then opened by the overly willing passenger (probably an ICE officer in civilian clothes), revealing a bunch of radishes. (Think twice before you try to smuggle radishes from France.) 

Another agricultural use of dogs was recently described in the Journal of Food Protection, and quite likely foreshadows a new industry for dog trainers and handlers. 

Fecal Contamination of Produce

Microbes, such as Escherichia coli, Salmonella, and Listeria, can get onto fresh produce through feces of rodents, birds, and other animals.  The feces can be put directly on the produce by the animals or can be brought into a field or factory through irrigation or processing water.  A group of researchers from the School of Veterinary Medicine at UC Davis and from various facilities of the U.S. Food and Drug Administration have published a paper analyzing how effective dogs might be in detecting fecal contamination of produce.  

The team had three dogs trained for the experiments, all mixed-breed females.  Dog 1 and Dog 2 were given what was called “indirect detection training,” under which the target scent was a sterile gauze pad saturated with a mixture of feces and water.  The feces were collected from vertebrate species commonly found in or near agricultural fields, specifically dog, cow, horse, black-tailed deer, feral pig, coyote, Canada goose, sheep, and human.Dog 1 and Dog 3 were given “direct detection training,” under which dogs were trained to recognize fecal contamination of romaine lettuce, spinach, cilantro, and whole Roma tomatoes placed in specimen storage containers.  Thus, Dog 1 received both types of training, but Dogs 2 and 3 only received one or the other. 

Indirect Detection Trial Procedures

In the indirect detection trials, lettuce, spinach, cilantro, or tomatoes were put into 30 bags, and 8 of those bags were filed with either 0.025, 0.25, 2.5, or 25 grams of feces (two bags at each amount).  Gauze pads were suspended were suspended by strings were suspended inside the bags but not in contact with the produce for 24 hours.  The gauze pads, which were 4-ply cotton pads, were removed after a day and separated to create separate samples. The samples included gauze pads from bags in which there was no fecal contamination.  Samples were placed in special holders in three rows of 10, with contaminated samples distributed randomly.Trials were double blind as the dogs, the handler, and the data recorder did not know which samples had pads with fecal contamination.  The handler made sure the dog examined each holder.  For each alert, the dog was rewarded with some time with a chew toy.  Care was taken to remove secretions—at least obvious secretions—by dogs sniffing close to holders. 

Direct Detection Trial Procedures

For direct detection trials, 8 of 30 bags of produce had feces added, but in amounts of 0.0025, 0.025, 0.25, or 2.5 grams.  After the first trial, the largest amount was dropped and an even smaller amount, 0.00025 grams was added.  Instead of three rows of ten, as in the indirect detection trials, there was one row of 12 containers, which were different than those used in the indirect detection trials and had holes drilled in the top shortly before a trial began.  To avoid rewarding the dogs for an incorrect response (which had been possible in the indirect detection trials), the dog was praised verbally for an alert during the direct detection trials.  

Indirect Detection Results

In the indirect detection trials, Dogs 1 and 2, the ones used in these trials, missed detecting fecal contamination in most samples where the gauze had been exposed to fecal contamination.  Dog 1 was nearly twice as effective as Dog 2 in alerting to pads from samples that had fecal contamination, but also alerted more often to pads that had not been in bags with fecal contamination.  Both dogs were more likely to detect fecal contamination on Roma tomatoes than on cilantro or spinach.  When the produce in a bag was contaminated with 2.5 grams of feces, the highest possible amount, both were considerably more accurate.  However, the results indicated that this procedure, as conducted in the experiment, was not effective.  

Direct Detection Results

When dogs were able to sniff the produce itself, as opposed to a gauze pad that had been kept near the produce for 24 hours, they were much more accurate.  This is not surprising as there was presumably a higher odor concentration using this approach.  Here, each dog sniffed 720 containers, 156 of which contained some amount of feces.  The researchers found that “Dogs 1 and 3 had 11.1 and 23.6 higher odds of alerting, respectively, when encountering treatment samples compared with control samples.”  Dog 1 was significantly more likely to incorrectly alert in the presence of a control sample than was Dog 3. 

The amount of fecal contamination proved to be crucial.  When the amount of contamination was greater than 0.025 grams, the probability of detection achieved 75%, and reached almost 100% at 2.5 grams: 

“In other words, for samples with ≥0.025 g fecal contamination, the probability of collecting samples of produce with fecal contamination is 5- to 30-fold higher (500 to 3,000%) when using a dog than when randomly selecting produce samples across a field, as is sometimes done during investigations.”

Implications for Agricultural Inspections

The advantage of the indirect detection approach was that vegetables were not exposed to the dog, which prevented cross-contamination between the dog and the sample.  The researchers note that unfortunately this approach “did not result in acceptable levels of sensitivity for any but the highest levels of fecal contamination.”  The direct approach was more successful, in that the dogs exhibited 76% and 86% sensitivity, respectively, in detecting more than 0.25 grams of fecal contamination.  (For an explanation of the terms “sensitivity” and “specificity,” see a prior blog on the use of dogs to detect lung cancer.)

California Ground Squirrel
Ground squirrels, common in produce fields, defecate between 2% and 8% of their body weight per day.  The researchers state that, based on their results, “scent detection dogs might be able to detect as little as 1% of a ground squirrel’s daily fecal load if deposited on, for example, spinach or cilantro or after foliar irrigation when feces or scat are deposited in furrows and along beds of leafy greens.” 

The broader implication of this is stated as follows:   “A protocol that uses a fecal scent detection dog to first screen all produce samples and then test only those to which the dog alerted can increase the probability of detecting contaminated produce by up to 3,000%, depending on the background prevalence of fecal contamination in the field.”

The researchers conclude that “the use of scent detection dogs will allow us to prioritize produce samples for analytical testing and thereby optimize the detection of both feces and the associated microbial pathogens that so often accompany fecal contamination.” 

Conclusion

The results achieved with the dogs might be improved by different training regimens, or the use of different breeds, possibilities that the researchers concede may be true. Using dogs over longer periods than was the case with these experiments might also improve accuracy. 

The dogs were not as accurate as some prior research found in other contexts, but context is important.  Researchers looking to use dogs in cancer detection have insisted on consistently high success rates before this application can move into clinical environments, but the same levels of success should not be required for using dogs in detecting fecal contamination of produce.  If it can be verified that a protocol involving canine screening of samples, in order to prioritize which truckloads or other units of vegetables should receive further testing, would increase the probability of detecting contaminated produce by up to 30 times over the present approach, this makes a strong case for implementation despite the fact that some contaminated lots would still be missed.   

It is to be hoped, therefore, that if these results are verified, detection dogs may soon be put into service in real-world commercial agricultural operations.  Another example of such a use of dogs might be in detecting oil in fish hauls after a spill.  A new canine industry may be in the offing.

Partyka, Melissa L., Bond, Ronald F., Farrar, Jeff, Falco, Andy, Cassens, Barbara, Cruse, Alonza, and Atwill, Edward R.  (2014).  Quantifying the Sensitivity of Scent Detection Dogs to Identify Fecal Contamination on Raw Produce.  Journal of Food Protection, 77(1), 6014.  

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

Federal Judge Slaps Injunction on Cab Company Refusing to Carry Woman with Scooter and Service Dogs

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On April 9, 2013, Melodie and James Doud got into the line for a taxi at the Reno Airport.  The first available taxi was Yellow Cab Co. # 132, driven by Mohammed Parvez, who declined to let the Douds into his vehicle, saying that it was not equipped to transport people with physical disabilities.  The Douds were traveling with a motorized scooter which Melodie Doud needed, having lost a leg to cancer. They also were also traveling with two service dogs.  The second taxi in the line was another Yellow Cab, and this driver also refused to take the Douds, alleging that his religious beliefs forbade him from transporting their service dogs. (According to one court document, the driver said to them: “I’m not taking you because you have dogs, dogs are dirty and it is against my religion to transport a dog.”) 

A third taxi, from the Whittlesea Company, also refused to carry the Douds.  James Doud then flagged down an airport police vehicle.  The officer approached the fourth taxi in the line, another Yellow Cab, the driver of which agreed to transport the Douds.  This took 45 minutes.  Almost lost in the details of the case was the fact that James Doud was himself an employee of Yellow Cab and may have lost his job because of the action he took against his employer in this matter. 

Just over a month later, on May 19, the Douds were again at the Reno Airport and again encountered Yellow 132, still driven by Mohammed Parvez, who again refused to take the Douds, this time saying it was “against the law,” despite Melodie’s assurance that her scooter would fit into the taxi.  The scooter breaks down into five pieces, the heaviest of which weighs 50 pounds.  (The picture of the scooter here is from a manufacturer’s document filed with the court.)  James Doud then called a supervisor at Yellow Cab Co., Mukesh Sharma, who agreed to pick up the Douds.  The Douds also called the airport parking authority and the airport police, and the police found a taxi for them, though the Douds chose to ride in Sharma’s taxi when it arrived.

Complaint Filed

The Douds described these experiences as “humiliating, discouraging, demoralizing, and maddening.”  On May 21, 2013, the Douds filed a complaint with the Nevada Transportation Authority, which determined that Yellow Cab had violated Nevada Revised Statutes 706.361, which provides that persons with disabilities are entitle to full and equal enjoyment of facilities of public transportation, which applies to “any common motor carrier of passengers.”  Yellow Cab appealed the decision.

The Douds also sought a preliminary injunction to stop Yellow Cab from refusing to give them service in the company’s standard taxis.  To obtain a preliminary injunction, a plaintiff must establish (1) he or she is likely to succeed on the merits, (2) likely to suffer irreparable harm without such relief, (3) that the balance of equity is in the plaintiff’s favor, and (4) that the injunction would be in the public interest.  A trial court is given broad discretion in deciding whether to grant a preliminary injunction.  

The federal district court for the district of Nevada determined that a preliminary injunction was appropriate because the Douds were likely to succeed on a claim under the Americans with Disabilities Act, they would likely suffer harm unless the cab company’s refusal to serve them was stopped, the injunction would not burden the cab company, and issuing an injunction requiring the company to accept disabled passengers would be in the public interest. 

The court noted that regulations under the ADA, 49 CFR 37.29, specifically mention taxi services, providing:

“Private entities providing taxi service shall not discriminate against individuals with disabilities by actions including, but not limited to, refusing to provide service to individuals with disabilities who can use taxi vehicles, refusing to assist with the stowing of mobility devices, and charging higher fares or fees for carrying individuals with disabilities and their equipment than are charged to other persons.”

Yellow Cab argued that it had offered the Douds a reasonable accommodation by asking them to ride in vehicles equipped for disabled passengers who use motorized scooters.  The company had a practice of referring disabled customers to a sister company, Reno Sparks, which has wheelchair-adapted vehicles that can transport the entire scooter with the passenger, without any need for disassembly.  The court noted, however, that making Yellow Cab accept disassembled scooters placed no undue financial or administrative burden on the cab company.  Also, James Doud could lift each piece of the disassembled scooter by himself, so there was no need for Yellow Cab to be concerned about its drivers lifting heavy equipment. 

Prior Taxi Dispute

This is not the first time, and is not likely to be the last, that a taxi company has refused to provide services to a customer with a service dog.  In 2003, a dispatcher for the Yellow Cab Drivers Association, Inc., sent a driver to a department store in Salt Lake City.  Upon being pointed by store employees towards a blind woman with the guide dog, the driver turned and left (DOJ Complaint 202-77-34).  Responding to the woman’s complaint, the Department of Justice stated that Yellow Cab is in the business of providing transportation services to members of the public and is covered by Title III of the ADA (42 U.S.C. 12181(10) and 28 CFR 36.104.  

As part of the settlement, Yellow Cab agreed to distribute a car window decal to all drivers in size 12 or larger, to be placed on every cab, welcoming persons with service animals.  The decal was to be on cabs "purchased, leased, or operated" by Yellow Cab.  All drivers and dispatchers had to take an ADA training program, and all future hires had to be trained concerning passengers with disabilities within 30 days of starting to work for Yellow Cab.  Yellow Cab also agreed that the Department of Justice could perform unannounced testing.  The woman who complained received 25 free fare certificates. 

Conclusion

The federal district court for Nevada granted the preliminary injunction, stating:

“Yellow must not refuse to transport the Douds on the basis of Mrs. Doud's disability. Yellow must provide the Douds with taxi services on the same terms and conditions as any other passenger. If, however, any portion of Mrs. Doud's disassembled scooter is too heavy to lift, Yellow's drivers need not lift it. Yellow must also incorporate into its existing driver training that the Douds may ride in Yellow's standard taxis.”

The case is likely to continue.  James Doud alleged that he lost his job with Yellow Cab in retaliation for filing the complaint against the company he worked for.  That sort of retaliation could lead to substantial penalties if established.  Doud v. Yellow Cab Company of Reno, Inc., Case No. 3:13-cv-00664-MMD-WGC, 2014 US Dist LEXIS 120243 (August 28, 2014). (See Service and Therapy Dogs in American Society, pp. 155-157.)

As one who was a long-time resident of New York City, where cabbies cruise for fares but, particularly at rush hours, only stop for passengers likely to be going short distances who don’t have luggage, it must be said that an injunction like this would have little effect at any location other than a taxi stand.  Even there, I could be passed to the second or third cabbie in the line just because I was not wearing a suit and tie on a given day.  “I’m going out on a call in a minute.”  “I’ve got to stop for gas if we’re going any further than midtown.”  An injunction would do no more than assure that certain excuses were not used.  Still, the fact that rights are not always enforceable does not mean that they do not exist.

Thanks to Leigh Anne Novak for valuable suggestions.  

Dogs of the Bible Lands

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Publication Note: The following article was published in Hebrew in PetsNews, over two issues, July/August and September/October, 2014.  The article grew out of a blog that was originally posted here in May 2011.  Eytan Hendel, an internationally known judge at dog shows and the editor of PetsNews, had previously turned a blog I wrote on sighthounds in ancient Egypt into an article for this magazine (July/August 2012) and asked me to update the article on dogs in the Bible. I had looked more at some Talmudic and Christian sources since the original posting, and had taken that posting down with the intention of revising it with new material, so Eytan's request spurred me to advance the project.    

Natufian Burial c. 10,000 BCE (courtesy Alain Degand)
A burial strongly suggesting domestication has been excavated in Israel and dated to around 12,000 years ago. A picture from the site, taken by Alain Dagand, shows a human skeleton, the left hand over the skeleton of a small dog, the two of them buried at Mallaha, about 15 miles north of the Sea of Galilee. There has been a good deal of research and speculation regarding the measurements of the dogs found in Natufian excavations, and it is generally agreed that they were not tamed wolves and may have been similar in size to present day pariah dogs.

Despite early evidence for domestication in the region, and the implicit affection of the arrangement of the two skeletons, The Interpreter's Dictionary of the Bible, in its entry on dogs, says bluntly that biblical writers "seem unfamiliar with any kind of warm personal relationship between a dog and its master." It must be doubted whether this tells the whole story, however, as there are references to a number of functions for dogs in the biblical and post-biblical periods of Judaism, and in works of early Christianity that probably originated in Jerusalem or in Christian communities in the Near East. 

Early Egyptian and Babylonian Contacts

The term for dog in Hebrew (כָּלֵב, keleb) may have been onomatopoeic, mimicking a bark. The word is similar in Akkadian, Phoenician, Ugaritic, Arabic, Aramaic, Syriac, and Ethiopic, and may be equivalent to the pronunciation of an Egyptian hieroglyph.  

Before the biblical period, a papyrus sent by an Egyptian official complaining of his remote posting, perhaps in a part of Syria under Egyptian control, refers to the hundreds of dogs (or dogs and jackals) that lived in the town, which could be depended upon to assemble any time a container of beer was opened. (Papyrus Anastasi 4, British Museum 10249)There may be some humor intended in the passage, with vast numbers of dogs pestering anyone who drank beer, but the presence of pariahs around a village was obviously already a problem.  Exodus 11:7says: “But not a dog shall growl at any of the Israelites [לְשֹׁנ֔וֹכֶּ֙לֶב֙יֶֽחֱרַץ־  לֹ֤א], not at people, not at animals.” The barking of pariahs would attend any caravan passing near a city or village. 

Gebel El-Arak Knife with Mesopotamian Dogs (Wikimedia Commons, “Rama”)
There is no evidence that the Egyptians influenced early Israelites as to dog breeding or otherwise, but there may have been trade between Mesopotamia and Egypt that could have involved dogs passing through the Near East.  A knife handle dated from 3300 to 3200 BCE found at Gebel El-Arak near Abydos, Egypt, presently in the Louvre, may show the god El wearing Mesopotamian clothing. The dogs, aligned below the lions, look very much like Mesopotamian Molossians.Samuel Birch, first head of the Egyptian and Assyrian section of the British Museum, thought the mastiff on the knife was not a native Egyptian breed, but one brought to Egypt from further East. Beatrice Teissier sees “the hand of a copyist” in the carving but describes significant trade from Iran along a northerly land route and “only latterly by sea to Egypt from the Lebanese coast.”Thus, whether or not the knife made a journey from east to west, it is quite possible that war and guard dogs could be found on trade routes through territory under Judaean control. 

Sheep Dogs

Deuteronomy 23:18 says: "Thou shalt not bring the hire of a whore, or the price of a dog, into the house of the Lord." Both Jewish and Christian scholars have seen the dog as a term for a male prostitute, but this explanation does not exclude the possibility that those reading the original law would have understood that dogs, like male prostitutes, do have a price, though a negligible one.  What kind of dog would have any value at all at that time in Israelite culture?  Offspring of proven sheep guarding dogs would have some value to other shepherds. A much later Talmudic passage, Bechoroth 57a, suggests that a good sheep dog might have the value of a lamb (equating ten sheep with the value of nine sheep and one dog). 

Job 30:1 makes the earliest certain reference to sheep dogs in the Bible: “But now I am laughed to scorn by men of a younger generation, men whose fathers I would have disdained to put with the dogs who kept my flock (אֲשֶׁר-מָאַסְתִּי אֲבוֹתָם לָשִׁית, עִם-כַּלְבֵי צֹאנִי).”  Later traditions supposed that flocks were large and the number of sheep dogs was sufficient to guard the flocks.  Genesis Rabbah (73.11) says that Jacob had sixty myriads of sheep and either one or two dogs for each flock, suggesting that a wise shepherd would have many sheep dogs. Livestock guarding dogs could be expected to fight and fend off large cats, wolves, hyenas, and other threats. BT Bechoroth 55a says a shepherd's dog comes when it is called, indicating that by Talmudic times there was a certain amount of what would now be called obedience training.

Cylinder Seal found near Baghdad (Frankfort 1955)
Seal impressions from the Near East sometimes depicted sheep dogs. Henri Frankfort described a seal found northeast of Baghdad in Iraq, perhaps dating from the Akkadian period, as showing a lion “driven off in the nick of time by a herdsman with a spear, while his dog has growlingly retired before the formidable robber.”  Although the dog is in the background above the goats, it appears not to be retreating but rather advancing directly towards the lion, which has turned its head but not its body towards the goatherd.  It is this author’s opinion that the dog has distracted the lion enough for the goatherd to be able to put the spear into the lion’s back.

Sheep dogs might have occasionally served as pack animals.  Leviticus Rabbah (Parashah 13:2) refers to a man who took his ass to the threshing floor where he loaded the ass with five seahs of grain and his dog with two.

Guard and War Dogs

Dogs could serve as guards of a camp or city, as is implied by Isaiah 56:10: "His watchmen are blind: they are all ignorant, they are all dumb dogs, they cannot bark; sleeping, lying down, loving to slumber."  Such dogs might have been pariahs living in and around cities or camps that would earn occasional scraps by sounding the alarm when strangers or predators approached. 

Dogs on Hittite Battlefield  or Sacrifice After (Frankfort 1939)
Psalms 68:23 refers to dogs on the field after a battle ("That your foot may be dipped in the blood of your enemies, and the tongue of your dogs in the same"), similar to many references in the Iliad of Homer.  Dogs are almost never indicated in battle scenes on cylinder seals or other art, though a Hittite seal shown described by Frankfort depicts dogs at a battle or sacrifice, perhaps being held until they can be loosed on dying and dead enemies. 

There is no evidence that Israelites used war dogs, but they would have been familiar with their use by some of their enemies.  While captives in Babylon, they would have seen the massive Molossians like those from the palace of Ashurbanipal displayed in the British Museum. A similar dog was depicted on a panel excavated from a Nabatean site at Hetra, a people with whom the Israelites sometimes engaged in battle.      

Hunting Dogs

References to hunters in Genesis (Nimrod, Esau) do not mention dogs but it cannot be taken as certain that dogs were not used at the time.  Men of rank in Egypt, Babylonian, and other Middle Eastern cultures were often depicted alone, facing a lion or other formidable game with only bow and arrow, when it can be said with certainty that such encounters almost never occurred without the support of many other people, also armed, and almost always dogs to make first contact and considerably reduce the loss of human life.

Leopard Hunt on Sidon Sarcophagus (Bey & Reinach 1892)
Nets are mentioned a number of times in the Bible (e.g., Micah 7:2).  Dogs were used in hunting birds into nets across the Middle East, and were particularly effective with large birds such as ostriches.  (See Septuagint Proverbia 7:22, adding a reference to the use of a dog that is not found in the Hebrew Proverbs).  Lions and leopards were hunted both as game and to reduce the predator population near human habitation, and the Testaments of the Twelve Patriarchs (Testament of Judah 4:2) describes a leopard in Hebron leaping upon a dog, which could have been a dog protecting a flock or a hunting dog. The “Great Sarcophagus,” one of several found at Sidon that include hunting scenes, dating from the mid-fourth century BC, includes a panel of an attack by a leopard. (Bey & Reinach 1892)

Scenes from Beit Jibrin Tombs (Peters & Thiersch, 1905)
In 1902, John Peters and Hermann Thiersch, an American and a German, went into recently discovered burial caves at Beit Jibrin, southwest of Jerusalem. The caves dated from the second century BC in an area controlled by the Ptolemies during the period the tombs were constructed.  Of particular interest for canine history are two wall paintings, one showing a hunting scene and one showing a three-headed Kerberos.  There were also depictions of animals that were hunted or captured, possibly for use in staged hunts in arenas in places like Antioch.

The bottom painting in the montage from Beit Jibrin shows a hunter on horseback just before throwing a lance at an already wounded she-leopard. Beneath the horse runs a hound, while another dog seizes the leopard from behind. All the dogs have collars. Above the leopard’s head is the Greek word for leopard, ΠΑΡΔΑΛΟC. The faces on the tombs were scratched out by the local inhabitants of the area at the time of discovery, where the Sheikh of Beit Jibrin declared that they were haram, forbidden by Islamic law.  The names of some inscriptions from the later period of usage of the caves appear to have been of Jews or Idumaeans (e.g., Kosnatanos, Babas, Sariah), and Semitic names for months were found in the tombs.  It seems likely that the Ptolemaic overlords of the area brought their hunting passions with them, and it is certain that these hunts would have been seen by, and likely an annoyance to, local Jewish shepherds and other inhabitants. 

Companion Animals

The Book of Tobit, an apocryphal work, provides the earliest evidence that dogs could be companions:

(6.1) The boy and the angel left the house together, and the dog came out with him and accompanied them.
(11.2,4) When they reached Caserin close to Ninevah ... The dog went with the angel and Tobias, following at their heels.

The Interpreter's Dictionary of the Bible says that the likely composition date of Tobit is between 200 and 170 BCE, and that it was probably composed in Syria or Mesopotamia, though an Alexandrian origin has been suggested.  It has also been speculated that the dog may represent the spirit of a dead man, and that this may indicate Magian influence in the story.  Nevertheless, it appears that by the Hellenistic period dogs could live in houses and be seen as companions, though the degree to which this would have been true in Israel is uncertain.

Dog under Low Couch (Roman period; photo by author)
In the Gospel of Matthew (15: 26-7), Jesus says, "It is not right to take the children's bread and throw it to the dogs," to which a woman replies, "True, sir, and yet the dogs eat the scraps that fall from their master's table." Jesus may have been quoting a proverb, but regardless of its meaning (most commentators think that it is a debate as to whether Jesus should give his message to the Gentiles), the passage indicates that by the first century CE dogs were sufficiently common in dining areas that a reference to their picking up scraps dropping from a table would have been easily understood.  The passage also appears in the Gospel of Mark (7:27-8).  Only in the latter are the dogs said to be under the table, which further suggests that they may be pets. 

A passage in the Mishnah, Baba Kamma 5.3, says that "if a man brought his ox into the courtyard of a householder without permission and the householder's ox gored it or the householder's dog bit it, the householder is not culpable." This is a legal principle with practical meaning in an agricultural society, but it also tells us that dogs could be found in courtyards. It does not, however, tell us whether they were sheep dogs, guard dogs, or pets. That injury would occur suggests they were large. The same book (7.7) says that "a man may not rear a dog unless it is kept bound by a chain." This also means that, in the agricultural society in which the Mishnah was written, dogs were owned and cared for, but society even then expected them to be leashed, at least when in an entrance area to a house.  This may suggest that some of the animals were pets. 

Another book in the Mishnah, Nedarim (4.3) says that the meat of unclean cattle could be fed to dogs. Chullin (4.7) says that if a beast that had not before borne young cast an afterbirth, it may be thrown to the dogs. Although the Jerusalem temple had been destroyed and replaced by a pagan temple by the time of composition of the Mishnah, the ritual purity of food was still maintained. It also means that meat was considered appropriate food for dogs. Even meat sacrificed on a pagan altar could be given to them. (BT Pesachim 29a, Bechorot 15a.) The prohibition of giving meat sacrificed on the altar of the Jerusalem temple may explain the original context of a passage in the Gospel of Matthew (7:6): "Do not give dogs what is holy.”

Even priests may have owned dogs. Tosefta Kelim Baba Qama 1:6 says, concerning the sanctity of the area between the temple hall and the altar: “Are you ashamed to admit that the High Priest’s dog is more privileged than you?”  The Talmud, BT Pesahim 32a, says that if a “priest wishes, he can place [unclean terumah] before his dog or burn it under his pot.” BT Moed Katan 17a refers to a dog eating a rabbi’s shoes, which would seem most likely to be a transgression of a house dog. 

The Talmud provides many rules and observations concerning dogs. Although they may not eat sacred foods and sacrifices, they may eat semi-leaven on Passover (Pesachim 43a). Dogs bark to protect their owners and a neighborhood (Pesachim 113b). Dogs pretend to be asleep in order to steal food (Genesis Rabbah 36.7).  There were superstitions about when dogs bark. When dogs howl, the angel of death has come to town; when they frolic, Elijah the prophet has come to town (Baba Kamma 60b) (a belief shared by Arabs, Thousand and One Nights, 2:56). A widow should not raise dogs lest she be suspected of immorality (Abodah Zarah 22b; Baba Metzia 71a). It is forbidden to castrate a dog (Chagigah 14b). A dog knows its owner but a cat does not (Horayot 13a), which may perhaps be an early draft of a saying one hears even now:  "Dogs have masters, cats have staff."

Pariahs

Feral dogs congregated around areas where garbage was disposed of throughout the ancient world, and still do so in many cultures.  Exodus 22:31states: “You shall not eat any meat that is mangled by beasts in the field; you shall throw it to the dogs.”  This probably refers to pariahs, but does not exclude the possibility that dogs with guarding functions could be permitted to eat the flesh of carrion killed by beasts, particularly when resources were short.  

Leaving the bodies of criminals to dogs was a particularly contemptible fate for someone despised by society. 1 Kings 14:11 says: “Anyone belonging to Jeroboam who dies in the city, the dogs shall eat; and anyone who dies in the open country, the birds of the air shall eat.” Ahab was to be food for dogs in 1 Kings 21:19 and Jezebel in 1 Kings 21:23 and 2 Kings 9:10 and 9:36-7 (the latter emphasizing that she will no longer be recognizable after the dogs are through with her).   The prediction of Ahab’s body being left to dogs comes about in 1 Kings 22:38, which states: “They washed the chariot by the pool of Samaria; the dogs licked up his blood, and the prostitutes washed themselves in it….”  Licking blood at the pool of Samaria became favored imagery, and there may have been places where pariahs could be expected to congregate after executions.  Josephus recounts that one of Herod’s spies was uncovered by his enemy, pulled to pieces, and given to the dogs.  Reasons for executing and throwing a body to dogs appear in rabbinic discussions. (See BT Hullin 116a; Kiddushin 57b, 58a; Makkoth 23a; Pesahim 118a.) 

It has already been mentioned that pariahs could have been expected to bark at the approach of strangers or enemies.  During the revolt against Rome, Josephus recounts (BJ III.7.14) that one of the ways he tried to supply Jotopata when it was under siege was to have messengers creep past the Roman sentries at a neglected gully wearing sheepskins so that they might look for food. The messengers were to wear sheepskins so that if seen they might be mistaken for dogs. This means that dogs could be expected to be near the walls of a city under siege, but there is no implication that they were there for a military purpose, certainly not a defensive purpose or the dogs would have been brought in to avoid their barking and alerting the Roman sentries to the messengers.

Josephus also says (BJ IV.5.2) that when the Idumaeans cast corpses from Jerusalem, the naked victims might become the food of dogs and wild beasts. In the final stage of the war, Josephus tells of valleys filled with the dead, and mentions (BJ V.12.4; VI.7.2) dogs tearing bodies. Such descriptions are not confined to the war in which Josephus took part as he mentions dogs feeding on bodies in the war against the Philistines (Antiquities VI.9.4, VIII.11.1, IX.6.4).

Dogs in Syrian Village (Rice 1910)
Dogs in the region are still sheep dogs and scavengers. The picture printed by Edwin Wilbur Rice, taken about 1910 in Syria, shows dogs assembling for some anticipated treat. Rice does not further specify the location, but they are likely the pariah dogs of some city or village. Rudoph and Rudolphina Menzel, writing in the 1940s, noted that Bedouins would sometimes adopt pariahs and teach them to become herd dogs, and it is likely that some fluidity existed between feral and useful populations of dogs over the course of Near Eastern history.  The similarity of the Canaan Dog to the pariah has long been observed, and the treatment of this dog as a breed is a modern effort to isolate certain characteristics that was not part of earlier cultures (as has been true of sheep dogs and other sets of breeds beginning in the 19th century). 

Medicinal Value of Dogs

The Gospel of Luke (16.20) describes dogs licking the sores of Lazarus. Rice observed that the poor of Syria "who are afflicted with sores, expose them purposely to the dogs to be licked, trusting their saliva will help to cure them." Such a primitive medical practice could occur, however, without any religious significance.

In describing the area around the Dead Sea, Josephus mentions a medicinal plant called baaras that grows there, which is pulled from the ground with the help of a dog, which dies from the procedure. Most commentators believe the plant was the mandrake of later traditions. (Samuel S. Kottek, Medicine and Hygiene in the Works of Flavius Josephus, 1994) Josephus may have introduced the story of the use of a dog to extract the magical plant to western culture. Since dogs will not automatically die merely by being tethered to a root, it is possible that the account of Josephus contains a confused memory to a dog sacrifice by strangulation, perhaps even a local adaptation of a sacrifice to the goddess Gula. (Tallay Ornan, “The Goddess Gula and Her Dog,” Israel Museum Studies in Archaeology (2004))

Conclusion

Dogs were used in guarding flocks, particularly sheep, certainly by the pre-exilic period, and were quite likely used in the semi-nomadic period before final settlement. Dogs were an integral part of hunting technology throughout the Middle East, and this function can be demonstrated in Israelite territory from the Persian period onward. Earlier references to hunting lions and catching game with nets are quite likely to have involved the use of dogs, particularly since this would have reduced loss of human life and because use of nets without dogs would have often been a hopeless enterprise.  

Pariahs may have been the original city guard dogs, notifying the inhabitants of the arrival of threatening strangers.  Pariahs were also useful in disposing of bodies not deemed worthy of burial, and leaving a body to the dogs became a particular form of contempt. There may have been places, like the pool of Samaria, where this was regularly done.  Functions in healing were part of the ritual significance of dogs in Babylon and Persia, and aspects of these beliefs may have been known to Jerusalemites.  Dogs were pets across the Middle East, though this position in society requires a certain level of wealth if dogs are to receive food from masters.  By the late Hellenistic period, small dogs in houses could be assumed to be well known, and even some Jerusalem priests and rabbis owned dogs.

Does Therapy Work Stress Dogs? Should Therapy Dogs Be Allowed to Work Off Leash?

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The benefits of therapy dogs for various types of populations, including hospital patients, students, children learning to read, nursing home residents, and others, have been well documented, but how this work affects the dogs themselves has been less studied.  Having made therapy dog visits with Chloe for over six years, I have known a number of teams that have stopped because the handler concluded a therapy dog was burning out.  One handler told me that she took her boxer out of service because the dog had an expression that she had not seen before when a child picked up a fold from the dog’s back.  “He was not happy.  I could not risk that it might go further.” 

Concern for stress in therapy dogs was expressed by James Serpell, Raymond Coppinger, and Aubrey Fine in 1999, and various research teams have been looking to identify and measure stress in dogs doing therapy work, with some studies being largely anecdotal, some behavioral, and some looking for chemical markers that might indicate whether therapy dog work is stressful, and when it is too stressful for the dogs.  Although levels of oxytocin and insulin have been studied in the search for chemical profiles of stress, the studies discussed here were particularly focused on measuring levels of cortisol.  These studies often included measurement of specific behaviors and generally—though not consistently—found that therapy dogs did not have higher cortisol levels while they were doing therapy dog work or had recently completed therapy assignments. 

Cortisol is a steroid hormone secreted naturally in response to numerous mental and physical stimuli, some but not all of which are negative and stressful.  Cortisol rises in response to sexual stimuli and activities such as hunting and guarding.  Also, since dogs have long been valued for waking a village at night at the approach of intruders, it is possible that being approached and petted by strangers, as happens in therapy work, may produce some discomfort and raise cortisol.  Short-term effects of elevated cortisol are useful in allowing an animal to regulate bodily responses to situations requiring energy and focus, but prolonged high levels can lead to stress-related diseases and have negative effects on an animal’s health.  (Glenk et al., 2014)  Therefore, research has begun to focus on a combination of behavioral indications and high cortisol levels to establish that a dog is under stress. 

Research Issues

A number of questions have been posed by the research teams involved in this work, which are listed here with pithy summaries of the answers reported so far.  After this summary of issues, I will attempt some additional elaboration on some important studies.
  1. Are cortisol levels higher while therapy dogs are working than when they are at home or in other environments?  Some studies say yes, but an increasing number have found no significant difference during or after therapy work.  It is not clear that a reconciliation of inconsistent results is yet possible or wise, but I will hazard some thoughts on why the disparate results may have been reached. 
  2. Do the length and frequency of therapy dog work sessions affect cortisol levels?  Most studies looked at dogs doing nearly identical regimens of therapy work, though there may be indications that particularly long and frequent assignments lead to elevated cortisol levels.
  3. Does providing breaks to therapy dogs during work sessions avoid cortisol levels elevating during work days?  A study that was designed to answer this specific question found that the breaks made no significant difference in cortisol levels between a group of dogs that got breaks and a control group that did not. 
  4. Does working on leash increase cortisol levels for therapy dogs as opposed to working off leash?A recent study found that working on leash resulted in higher cortisol levels. I will discuss policy implications. 
  5. Are  dogs stressed when working with specific target populations?  There is some evidence that working with children under age 12 is stressful for dogs, but other groups, such as nursing home residents, Alzheimer’s patients, and drug addicts do not seem to increase canine cortisol levels.
  6. Does positive reinforcement as a training approach reduce stress in subsequent therapy work by dogs?  A number of studies emphasize the use of positive reinforcement in training dogs for therapy work, but this has not been isolated as a factor in identifying which dogs will be more stressed by the work.  Because of ethical considerations, I doubt that it will be. 
  7. Are particular canine behavioral patterns correlated with higher cortisol levels?  Since some studies did not find higher cortisol levels from therapy work by dogs, correlations could not be provided between behavioral patterns and higher cortisol levels.  Nevertheless, a number of research teams have proposed lists of behaviors that should be recorded when seeking to verify that higher cortisol levels indicate stress rather than arousal from some other stimulus.  A standard list of such behaviors should be developed so that studies from various research groups can be correlated.
Before looking at individual studies, it is appropriate to provide a summary of their approaches and most important results, which is attempted in the following table.  The lead authors and dates of publication are listed in the first row, followed by summary characteristics of the teams, their training, the facilities where they work and what therapeutic functions they have.  Because one paper in particular raises the question of whether use of a leash may be a significant stress factor, a row is provided for what information is available from each study in this respect.  Finally, a summary of the behavioral and cortisol results is provided. 

Figure 1. Characteristics of Dogs, Training, Facilities, Activities, and Results of Cortisol Studies

Paper
Haubenhofer & Kirchengast, 2006
Piva et al., 2008
King et al., 2011
Glenk et al., 2013
Ng et al, 2014
Glenk et al., 2014
Number of dogs/teams
18
1
27 selected (data from 21)
21
15, but one team eliminated because of atypical results
5 dogs 3-10 years old
M/F
15 (4 spayed)/3
(1 neutered)
1 female intact (sometimes in heat)
14/13
7/14 (all spayed)
8/6, all fixed or spayed
3 (2 fixed)/2 (1 spayed)
Certification/training
Teams members of Tiere als Therapie
Basic obedience commands
Certified by Therapy Dogs, Inc. (Cheyenne)
Austrian AAI organization, certified dogs had ≥ 1 year experience in mental healthcare facilities
Vet Pets, Therapy Dogs International, AAA sessions, averaging visits from an 1 to 10/ month
Certified in Italy for AAI work, all with ≥ 2 years working experience; all trained with positive reinforce-ment and averaging ≥ 1 visit/ month
Facility/ population
Various facilities (hospitals, rehabilitation centers, retirement homes, schools)
Alzheimer’s patients
Edward Hospital, Naperville, Ill., most patients 41-60 years old, but some children
8-10 patients
Students in common area of U. Penn. Dormitory, 30 to 56 individuals in same room during study breaks
Drug-addicted inpatients
Activities
Dogs participate in “all types of work in AAA and AAT,” ranging from 1 to 8 hours (!)
20-minute AAA sessions
2-hour shifts, involving petting, hugging, watching the dog (AAT)
50-60 minute AAI sessions (~AAT)
Highly structured petting, scratching interactions in 60 minute sessions
Multi-professional animal assisted intervention (similar to AAT); sessions 55-60 minutes
Frequency
Variable number of sessions, sampling over 3 months
3-4 times/week
2 sessions/ week
1 time weekly for 8 weeks
Two 2-week periods during March & April 2012
1/week with 8-10 participants (and 1 dog and 2 therapists)
Use of leash
Not described
Allowed to roam free
Certifying organization requires use of leash, so presumably applied here
For experiments, 7 certified dogs were on leash and 7 were off; dogs in training were on leash
Off leash at home, on leash in novel and AAA environments, but could be attached to collar, harness, or head collar
Off leash
Reward
Not described
Praise, allowed to be free in garden and chase lizards
2-minute quiet-play time-out session (found not to significantly alter cortisol levels)
Praise, food treats
Treats prohibited during AAA sessions
Food treats (cheese) were sometimes given, but sometimes only allowed to be smelled to stimulate salivation
Behavioral stress indications
Not described, though authors recommend several days of rest after each session
Frequency of emotional and behavioral responses and calming signals and body language noted by staff
Stress behaviors such as air licking, yawning, panting, pupillary dilation, and whining were observed more frequently in dogs identified as having higher cortisol levels
No behavioral observations in published article
Ethogram (see next table); only behavioral difference noted was dogs standing more in AAA setting than novel or home; but more in novel than home
No differences in activities on the ethogram were found during working sessions; lip licking and other behaviors also did not indicate stress
Cortisol results
Salivary cortisol levels significantly higher on days dogs worked; higher in short sessions; generally higher at end of session; higher in morning than afternoon; cortisol levels increased with number of sessions/week
Fecal and hair cortisol measured supported “positive adaptation to the new environment and role of the dog”
10 dogs showed significant signs of stress, but 11 were either neutral or negative to stress levels of cortisol; experienced dogs were less likely to show stress levels of cortisol
No significant increases in salivary cortisol levels in any of the groups compared to baseline and home levels; positive interactions, quiet play, and affiliate behaviors were linked to reduced cortisol levels; dogs on lead showed high cortisol levels than dogs off lead
Cortisol measure in home, administrative office (novel), and dorm (AAA) environments; no significant difference between home and AAA environments
Salivary cortisol levels indicate dogs were not acutely stressed, but significant decreases were only found in experienced therapy dogs working off leash.

Undoubtedly more studies will be released in the coming months and years, but the following will provide a picture of some of the more dramatic results reported so far.  

2006 Study Finding Elevated Cortisol Levels in Dogs after Therapy Work

Two researchers from the Institute of Anthropology at the University of Vienna, Dorit Karla Haubenhofer and Sylvia Kirchengast (2006), studied salivary cortisol levels in 18 therapy dogs, 15 females (4 spayed) and 3 males (1 neutered).  All dogs were members of an Austrian therapy animal organization, Tiere als Therapie.  The working methods of the dogs were apparently variable as a “therapeutic session was defined as one visit to a facility and included all types of work in AAA and AAT.”  Sessions ranged from one to eight hours, though longer sessions apparently involved many breaks.

The number of sessions in which teams participated in the three-month period during which measurements were taken ranged from 9 to 50, so a team that had 50 sessions could have been averaging visits almost every other day.  The authors found that cortisol concentrations were significantly higher on days that the dogs did therapy work than on other days.  Cortisol levels after sessions were generally significantly higher than those taken before sessions began.  Also, this was more pronounced in the morning than the afternoon, and was higher in short sessions than in long ones.  The number of sessions per week was an important factor:

“Another variable related to physiological arousal was the number of therapeutic sessions done each week, with cortisol concentrations increasing significantly with the number of sessions. This suggests that several days of rest after each therapeutic session might prevent extreme arousal, which could lead to signs of chronic stress.”

Although cortisol levels were higher in short sessions than long sessions, it seems that the intensity of the work for some of the participants was very high, and eight hours in a therapeutic environment is not something I have personally encountered at any institution or facility.  The general nature of the description of the sessions, “all types of work in AAA and AAT,” makes speculation as to how these results may be correlated with others difficult.

The Time-Out Study

Two researchers from the Biology Department of Northeastern Illinois University and one from the Chicago Zoological Society, King et al. (2011), looked at both behavioral factors and cortisol levels in dogs working in animal-assisted therapies (AATs).  A specific purpose of the study was to determine whether therapy dogs allowed to have a quiet-play, time-out session during a working shift would “show fewer signs of stress both physiologically and behaviorally.”  A quiet-play, time-out session was described as consisting “of 2 minutes of visiting with the handler, allowing the dog to chew on a toy, petting and talking to the dog, or providing mental stimulation in the form of obedience commands.”

A total of 27 therapy dog teams were recruited, with 14 female and 13 male dogs, but 6 dogs were dropped from statistical sampling for various reasons.  Handlers had scheduled two-hour shifts at the Edward Hospital in Naperville, Illinois.  They note that this environment often involved “gathered crowds of people, or alarms on hospital equipment.”  Dogs were certified through TDI, which apparently here means Therapy Dogs, Inc. of Cheyenne, Wyoming (i.e., not Therapy Dogs International). 

Participating handlers filled out a survey providing information concerning the dog’s behavior during sessions and “the age of the patient the therapy dog visited, and the type of interaction between the patient and the AAT dog.”  Most patients visited by the dogs were between 41 and 60 years old.  Most engaged the dogs by petting, but some by hugging or just watching the dog.  A researcher also observed the dog’s behavior at the AAT office in the hospital after each work shift, recording, in particular, “panting, air-licking, tremor, pupillary dilation, or yawning 3 times.”

As to the question of how a quiet-time session would affect cortisol levels, the researchers found no significant difference between dogs that had such sessions and those that did not.  Some handlers did report “an initial hesitation in the dog when they returned to work after the time-out session.”  They also found that “AAT-hander survey reports were consistent with physiological indicators of stress,” though “cortisol levels decreased in several dogs at the end of their work shift, whether they had the ‘quiet-play’ time-out session or not.” 

This and the previous study are frequently cited as examples of results indicating that therapy work can be stressful in dogs.  Although I have encountered handlers who take their dogs for shifts as long as two hours, I have always restricted visits with Chloe to about one hour.  This was not initially my own limitation but because I sensed that Chloe’s interest in visiting more people in hospitals and nursing homes declined after about an hour.  Again, I wonder if the length of the sessions was a factor in producing stress. 

Shelter Dog in Alzheimer’s Facility

An early study that did not find unusual cortisol levels in a dog at an Alzheimer’s facility was somewhat different from other studies discussed here because the dog was not brought to the facility by a handler, but was “rehomed” to live in the facility after being at a shelter. (There has been some legal recognition of such resident companion animals in the United States.  See Service and Therapy Dogs in American Society, at 104.)  The research team, composed of veterinarians from Pisa and Bologna, Piva et al. (2008), chose Daisy, a six-year-old intact female English setter, from a group of eight candidates for the project.  Daisy was chosen because she was kind and cooperative when handled by strangers, interested in people, lacked aggression, was not excitable, had a stable and tolerant temperament, and acquired and carried out simple obedience commands easily.  The commands included Sit, Come, Wait, Sit on the Chair, and Down. 

Daisy (courtesy Dr. Elisabetta Piva)
Daisy was gradually introduced to the facility,initially by weekly visits, first with employees, then with patients. Meetings were held in a large room where she had the opportunity to escape.  Finally, she was allowed to explore the entire facility and randomly meet patients and employees.  Once in residence, Daily began to have 20-minute AAA sessions three to four times a week with four Alzheimer’s patients chosen by the staff psychologist. 

“These sessions include activities such as calling the dog from varied distances with vocal commands or gestures, brushing, playing, walking, feeding, and using hand signals to practice obedience exercises, depending on the patient involved.”  After sessions, Daisy was allowed to unwind and praised for relaxing.  She was also offered the chance to be free in the garden where she could hunt lizards.

Cortisol levels were measured:

“Fecal cortisol levels were evaluated in samples collected from every spontaneous defecation during the gradual introduction phase starting 2 days before to 2 days after each visit, and 2 days before to 7 days after adoption. An increase in fecal cortisol concentration indicates an activation of the adrenocortex in response to stressful conditions….”

The researches argued that their “findings suggest that despite small changes in the environment (more human patients in the facility) and in daily routines (fewer walks outside during AAA because of the hot and sometimes stormy summer weather that was considered dangerous for elderly people), the dog was healthy and her level of social interaction, exploration, and playfulness increased during the course of the AAA program. The dog displayed no aggressive or sexual behavior, even when in heat.  Autogrooming detected previously decreased in frequency and an acral lick granuloma that she had had gradually disappeared. Over-grooming, shown frequently by Daisy during the first examination in the shelter, was displayed less frequently as time went by in her new social and physical environment.”

The authors concluded:

“Daisy was able to cope with the new environment. The presence of enriched social contacts and the opportunity of increased physical activity positively affected her well-being…. The hormonal trend, especially with hair cortisol, seems to be correlated with the clinical and behavioral findings, all supporting a positive adaptation to the new environment and role of the dog…. Although this report refers to a single subject, Daisy, the results of our work represent an encouraging basis for further studies on a wider scale. Our dog, besides her ability to adequately carry out AAA sessions, showed progressive benefits (re-homing, increased activity and social interaction, decreased signals of stress), as definitively assessed by statistical analysis.” 

Although not highlighted in the results, Daisy was frequently off leash, which may be significant in light of a study to be discussed below.  The results also suggest that Alzheimer’s patients are not inherently stressful subjects for a therapy dog to work with.  

Leash Study

Six researchers from a number of institutions in Austria, Glenk et al. (2013), sought to measure changes in salivary cortisol levels of dogs participating in animal-assisted interventions (AAIs, essentially AAT sessions), collecting samples on working and non-working days of 21 dogs.  The researchers concluded that both therapy dogs and therapy dogs in training were not stressed by their participation in the activities. They did detect, however, that cortisol levels were significantly different depending on whether the dogs were working on- or off-lead in the sessions.  The paper argues that the effect of a leash on cortisol levels of therapy dogs may have been underestimated.  Beerda et al. (1998) had previously demonstrated that pulling dogs on a lead cased increases in cortisol when the dogs were confronted with sudden noises or electroshocks. 

Teams were recruited from an Austrian AAI organization whose members regularly work in dog-assisted group therapy.  All handlers were women who also took part in the therapy sessions.  An experimenter also attended the sessions for sampling procedures, with the approval of staff members of the facility where the sessions occurred.  Seven dogs were males and 14 were females, ranging from 1.5 to 14 years. Nine of the females were spayed, but the other females were not in estrus or pregnant during the experiments. 

To become a certified therapy dog team, “dogs and owners undergo special training, during which animal handlers can decide whether they want to work with their dog on- or off-lead.”  This is not typical in the United States. The rules of the organization to which Chloe and I belong provide: “Dogs must be kept on leash at all times when visiting, except when warranted (during a demonstration).”  There was another significant difference from my experience.  Among interaction behaviors recorded during the study were food treats being given to the dogs.  My organization's rules state that the “use of food or treats is prohibited while visiting (exception—during a demonstration, the handler can treat the dog).”

There were three groups used for the study, one group of dogs trained to work on lead (CTD-ON, in the acronym used in the paper), and another group off lead (CTD-OFF).  Dogs used for the study “had a minimum of one year working experience in mental healthcare facilities.”  The third group consisted of dogs that were in training (TDT-ON), whose owners had not yet decided whether to work on- or off-lead, but which were on lead for the experiments.  There were seven dogs in each group. The existence of such a training stage indicates a higher level of training than is often found for therapy-dog qualification in many countries. 

Sessions lasted 50 to 60 minutes and were described as follows:

“All therapy sessions consisted of theory parts, interpersonal communication and interaction parts with the therapy dog. Each therapy programme started with a group of ten adult patients and was run weekly for eight weeks with the same individuals (animal handler, therapy dog and patients) present. There was no patient turnover during these eight weeks. AAI programmes were supervised by each institution’s staff members and participation depended on the respective physical or psychological condition of the patients. In the experimental sessions, 8–10 patients were present. The patients were informed previously how to interact in an appropriate way with the therapy dog before the dog was first introduced to the group.  During therapy, the patients were seated in chairs and instructed by the animal handlers when and how to interact with the dog (ie stand up, call, touch, grab or pull the dog’s lead).”

Certified dogs participated in the sessions while dogs in training watched and did not interact with the working dog.  Dogs were trained and handled by “positive reinforcement and gentle handling.”  Salivary cortisol was measured at home, before and after AAI sessions, and on non-working days.  Saliva samples were also collected during some therapy group sessions. 

“[O]ur study results reveal that performance in group-AAIs in adult mental healthcare did not stimulate significant increases in salivary cortisol stress responses in CTD-ON, CTD-OFF or TDT-ON when working cortisol levels were compared to baseline levels and home levels. These are important findings, considering that in dogs, an elevation in cortisol has been associated with stressful conditions resulting from fear….  On the other hand, positive interaction with humans, quiet play and affiliate behaviours were linked to reduced cortisol levels in dogs….”

Cortisol Levels Before and During Sessions (courtesy Dr. Lisa Glenk)
The graphic from the paper shows that before therapy (Time 1a) dogs in the three categories, two with leashes (but one in training) had fairly similar cortisol levels, but during therapy (Time 1b), they separated substantially, with dogs off leash having lower cortisol levels then dogs on leash. Dogs in training, with leashes, had the highest levels. As noted above, Beerda et al. (1998) had determined that being pulled on a lead caused stress in dogs and increased cortisol levels, so these results were not surprising. 

The longer sessions lasted, the more cortisol levels may have declined in CTD-ON dogs, but more research will be needed to verify this.  The team notes that there may be some differences between handlers that prefer to work with dogs on lead and those that do not, meaning perhaps that more controlling handlers might add some stress to the therapy situation.  On the other hand, “animal handlers with therapy dogs on the lead should be aware of subtle signals of discomfort in their dogs when they interact with patients and react accordingly.”  My own experience over six years of therapy dog work confirms this.  I have no choice but to work on leash, but more than a few times I have felt that a patient or other individual in a therapy dog visit was discomforting Chloe in some way, perhaps slapping rather than petting, or smothering her, and I have had to extract her from the setting as tactfully as possible. 

As to why Hubenhofer and Kirchengast (2006) and King et al. (2011), both discussed above, reached different conclusions, this paper speculates:

“[I]t is likely that the AAIs investigated by the different authors are not directly comparable because of their different conceptual context (eg therapy content, single patient versus group interventions, familiar versus unfamiliar patients), environment (eg therapy facility such as hospital, prison, geriatrics) and arrangement (eg frequency, intensity and duration of human-animal contact, dog on/off the lead, refuge for the dog).”

This is an important observation.  With the limited number of cortisol and cortisol/behavior studies of therapy dogs conducted so far, more patterns regarding the effects of different types of institutions and different types of programs may come to light. 

Substance Abuse Facility

The same Austrian team published another paper in 2014, looking at behavior and cortisol levels in therapy dogs that participated in sessions at an in-patient substance abuse treatment facility, measuring cortisol levels before and after sessions.  Levels of the chemical decreased in all sessions.  “There was no difference between salivary cortisol levels sampled on a nonworking day at home and work-related levels sampled at the therapy site. None of the behavioral parameters varied significantly over the course of the 5 MTI [multiprofessional animal-assisted intervention] sessions.”  MTI, according to the authors, “meets all require criteria to be considered AAT … and is carried out by 2 human experts with a back ground in psychology, pedagogy, life science, and/or social science….” The paper elaborates:

“Mediated by the MTI professionals, patients used signals to communicate with the dog. These signals were verbal or nonverbal cues including different hand signs, eye contact, mimics, words, and tone of voice. The main goal of MTI is to enhance patients’ emotional and social competence through implicit learning during interaction with a therapy dog…. Accordingly, the participants had been instructed how to interact in an appropriate way with the therapy dog before the dog was introduced to the group. Human-animal contact was initiated by the freely moving dog, which was kept off lead. Human-animal interaction behaviors moreover included verbal contact, where people talked to the dog or spoke in a high-pitched/fluctuating voice to praise the dog. Tactile contact included softly touching, stroking, and/or grooming the dog. To play with the dog, people used dog toys and/or gently gestured with hand, arms, and fingers. For ethical reasons, dogs were never forced into positions and were able to lie down, drink water, or leave the therapy room at any time.”

The researchers concluded that therapy dogs “are not being stressed by repeated participation in in-patient substance abuse therapy sessions.”  They argue that therapy dog handlers need more guidance:

“The development of a practitioner’s guide on dog welfare for AAI professionals and, maybe even more importantly, AAI volunteers shall be a forthcoming endeavor. AAI volunteers are often very dedicated to their work, but they also need to be well aware of subtle signs of discomfort in their dogs. Future research still needs to identify the populations or situations where contact with therapy animals may be potentially problematic or inappropriate for either the animals or the people involved….”

This also is an important observation.  As additional research establishes what sorts of conditions might produce stress in dogs, handlers should receive additional instruction in how to recognize stress.  At the moment, most qualification examinations in the U.S. that I have encountered through my own experience or that of others primarily involves testing the dog’s ability to follow the handler’s commands, not whether the handler can read signals given by the dog. 

Ethogram Study

Four researchers at the Virginia-Maryland Regional College of Veterinary Medicine and two from the vet school at the University of Pennsylvania, Ng et al. (2014), sought to quantify the stress effects on therapy dogs from engaging in animal-assisted activities (AAAs). This team sought to determine how stress levels would differ for therapy dogs in three environments: their homes, a novel setting, which was an administrative area in Penn’s vet school, and AAA sessions with college students in the communal area of a residence hall. 

Dogs were either part of the University of Pennsylvania’s therapy dog program (Vet Pets) or dogs registered with Therapy Dogs International.  All participating dogs were fixed or spayed, seven females and eight males.  Five had been certified for only one year, but one had been certified for six years and one for eight.Some averaged only one therapy dog visit per month, but one averaged between seven and ten days per month.  Session lengths from the experience of the handlers could be as low as half an hour and as high as two hours.  Of 15 dogs, only two had male handlers. 

Saliva was collected after the handler and dog had been in each of the three settings for an hour.  The researchers state that the “goal of the novel setting was to allow the dog to act as it typically would with its owner when waiting in an unfamiliar environment for 60 min without stranger interaction.” Sometimes two of the teams were in the administrative location simultaneously, though dogs were limited to interacting only with their own handlers in the location. 

The AAA sessions were with undergraduates in a communal space of Rodin College House, a Penn dorm.  The room was often used by students for study breaks and there were between 30 and 56 individuals present in the room during the sessions.  The researchers elaborate:

“The room was 9.1 m × 9.1 m, with tables and chairs arranged to evenly spread and demarcate eight, 2.1 m × 2.1 m spaces for each dog-handler team to remain during the session. The dog remained in close proximity to the handler on a1.83-m leash attached to a collar, harness, or head collar that the dog was accustomed to wearing at AAA visits. A maximum of eight dogs used separate spaces of the room simultaneously, but dogs were restricted from interacting with one another.”

The AAA sessions were highly structured with interactions and saliva collection kept in specific sequences:

“Participants were instructed to approach the dog from the side, to extend a hand to allow the dog to sniff, and to pet gently. Participants were instructed to avoid the following: aggressive gestures, making loud noises, leaning over the dog, giving treats, and crowding around the dog. Assigned “petters” were assigned to pet specific dogs during the 5-min petting time … but participants were permitted to interact with any of the dogs outside of that time….

“Each petter was instructed to sit on the floor to the side of the dog opposite the handler, where the petter did not obstruct the video camera view of the dog. In all settings, each petter was instructed to sit next to, rather than facing, the dog and gently stroke, pat, massage, and/or scratch the dog anywhere on the body with at least one hand remaining on the dog at all times. The dog was to be allowed to position itself and behave as it wanted during the 5-min petting procedure, as long as it remained within the assigned space within view of the video camera (accomplished via leash).”

Saliva was collected every half hour as prior research by Vincent and Mitchell (1992), and Handlin et al. (2011) had found significant changes in cortisol levels 15 to 30 minutes after stress events. 

The study also involved looking at behavioral changes in the three distinct environments.  Sessions were videotaped and behavioral patterns of the dogs, particularly while being petted, were analyzed.  An ethogram, a list of behaviors divided into postural states, spontaneous events, oral behavior, and alertness was completed by analysts of the tapes. (See Figure 2, below.)  Postural states included sitting, standing, recumbent, ambulating, exploring, and crouching.  Exploring is defined as “moving slowly, sniffing, investigating the environment.”  Crouching is defined as “rapid, pronounced lowering of posture, sometimes in combination with movements that enlarge distance to eliciting stimulus; posture shows lowered position of tail, backward positioning of ears, legs bent.” 

Spontaneous events were subdivided into eight categories: paw lifting, vocalizing (any form), scratching, body shaking, trembling, jumping (“springing into air, either to make contact with an object or person or for no apparent reason”), repetitively moving head (continuously for more than three seconds), and stretching.  Oral behavior could be panting, neutral (mouth closed), mouth opening (“opening, closing mouth with rapid movements without extending tongue; possibly yawning”), lip licking (“includes tongue out: tip of tongue briefly extended; snout licking: part of tongue shown, moved along upper lip; swallowing; smacking”), licking person, licking object, and self-grooming (“oral behaviors directed toward dog’s own body (licking, chewing skin and coat)”).  Alertness was divide into two categories: alert (“eyes kept open”), and rest/sleep (“eyes closed, dog inactive > 10s”).  

The reason for looking at both cortisol levels and behavior is explained as follows in the paper:

“It is important to consider that the same behavior can correspond to different emotional states of the dog. For example, ambulating may be strictly a motor behavior, but it can also be an indicator of restlessness or anxiety, depending on how the behavior is performed and the type of concomitant behaviors present at the time of ambulating. Therefore, it is necessary to assess behavior in conjunction with a physiologic parameter such as cortisol.”

The only behavioral differences noted had to do with postural states.  As to behavior, dogs stood significantly more of the time in the residence hall than the other settings, but more in the administrative area than at home.  They also spent more time ambulating in the residence hall, but very little in the administrative area and almost none at home.  Recumbent time was highest at home, which is no surprise, but at 60 minutes was higher in the residence hall than in the administrative offices, while at 90 minutes was higher in the administrative offices than in the residence hall.  The researchers speculated that in the administrative offices, the environment was unfamiliar and the dogs “were hyper vigilant to disturbances outside the room.” 

The researchers conclude:

“The 60-min AAA for college students in a dormitory setting did not appear to cause significant HPA activation or increases in stress-associated behaviors in registered AAA dogs….  No physiologic or behavioral indicators of stress, fatigue, or exhaustion were present during the AAA, suggesting that this particular AAA with college students did not negatively impact the welfare of these dogs. Furthermore, salivary cortisol was higher in the novel setting, which may be explained by the unpredictable nature of the setting.”

They speculate that “dogs were likely not stressed during the AAA because it was a familiar and predictable situation.”  In the novel setting, the administrative offices, the dogs may have been slightly stressed by an inability to predict what would happen next.  Although the dogs were not in direct contact with the veterinary hospital, the researchers note that they “could have detected subtle cues of a veterinary hospital environment.  Therefore, the physical environment alone, especially a veterinary hospital setting, may be physiologically stimulating, irrespective of the activity performed.” 

As discussed, this study did not look at dogs in AAT settings, just AAA settings.  The researchers note that “there is no single validated model to test the effect of AAA or AAT because they vary greatly in intensity of interaction, duration, objectives, and demographics of recipients.”  Thus, an AAT session, which “typically involves a continuous interaction with a single or small group of individuals,” might be more stressful for dogs. 

The researchers argue that their study describes “a rigorous method of assessing welfare in AAA dogs that can be applied in larger populations of working dogs.”  This proposition should be considered by other research teams entering this area.  Consistency of research designs will help determine whether and when dogs are being stressed by therapy work. 

Summary

Variations in the studies as to the numbers of teams, the training and certification approaches, the types of facilities visited, what activities were conducted inside those facilities, and the length and frequency of visits and sessions, means that comparing studies so far published cannot assure solid conclusions.  American and European studies differ in that the former generally involved dogs working on leashes, without food treats, whereas European studies sometimes involved dogs moving freely in therapeutic settings and receiving food treats from handlers and sometimes others.  Attempts to specify behavioral indicators of stress have had limited success, and correlations with cortisol levels have proved elusive. 

Arguments, such as that made by Ng et al., that a uniform grading system for behavioral measurements would be desirable, should be adopted, perhaps after some major conference on stress and trained dogs.  The behavioral measures suggested by four of the major studies discussed here are listed in Figure 2. 

Figure 2. Behavioral Measures in Cortisol Studies

Piva et al. (2008)
King et al. (2011)
Ng et al. (2014)
Glenk et al. (2014)
Nose and lip licking
Sit or curl up
Lie down, also with head
Yawning
Closing eyes
Rapid eye movement
Hypervigilance
Walking, pacing
Circling
Low posture
Freezing
Stereotypes
Displacement activity
Redirect activity
Apathy
Panting
Pupillary dilation
Yawning
Whining
Air licking
Postural state:
Sitting
Standing
Recumbent
Ambulating
Exploring
Crouching

Spontaneous event:
Paw lifting
Vocalizing
Scratching
Body shaking
Trembling
Jumping
Repetitively moving head
Stretching

Oral behavior:
Panting
Neutral (mouth closed)
Mouth opening
Lip licking
Licking person
Licking object
Self-grooming

Alertness:
Alert
Rest/asleep
Activity:
Lay
Sit
Stand
Walk
Run

Behavior:
Lip licking
Yawning
Panting
Paw lifting
Body shake
Tail wagging

Response to human action:
Takes a treat
Obeys command

Arguably, a set of behaviors and a recording system should  be used for stress studies of dogs doing not only therapy work but also service, police, rescue work, etc. 

Conclusion

The standard U.S. requirement that dogs be on lead during therapy visits does not come solely from certifying organizations or the mandates of their insurance providers.  Recently, a hospital I have visited with Chloe went through a national accreditation process where one dog, which was regularly turned loose in the psychiatric ward, was banned from the hospital because the accrediting organization stated that therapy dogs visiting the hospital had to be on a leash at all times.  This is also required by some insurance policies for hospitals.  Nevertheless, therapy dog organizations should give further consideration to whether working with therapy dogs off leash might be appropriate in certain confined spaces and structured activities, and if necessary, engage other stakeholders in therapy dog work in discussions on this issue.  It might be appropriate for certifying organizations to consider advanced certifications for dogs that are capable of working off leash under voice command of the handler. Progress in this area might require the major therapy dog organizations to cooperate with each other. 

As discussed, most target populations caused and most research designs found no evident stress in dogs from therapy work.  Nevertheless, Marinelli et al. (2009b) found that the age of individuals involved in animal-related activities and therapies “influenced the expression of stress-related behaviors” in dogs in that more such behaviors were evident when dogs were with children under 12 years of age.  This has been my experience as well.  When Chloe turned six I stopped going to a facility for developmentally disabled children because one teacher who had often accompanied me on visits to the classrooms left and too many other teachers regarded my entry into the room as time to attend to other matters.  The children often overwhelmed Chloe.  As she has gotten older, I have become more concerned with experiences that I sense, without any chemical or scientific behavioral analysis, may be stressful for her. 

These studies do not negate the importance of the handler knowing his or her dog and sensing when it is time to go home or to stop working.  Even the most sophisticated behavioral analysis, with video cameras and behavioral patterns categorized down to seconds if not microseconds, cannot replace the instincts of a good handler.  Nor can handlers be automatons created complete and unchanging after passing a certifying examination.  My work with Chloe has evolved over many years, and I have grown to trust my sense of how she can be most effective, and what will be most helpful to a patient, resident, student, or other person we are visiting when she is working.  She looks at me when she wants me to realize that it is time to move on, or that the patient has had enough.  She has also grown into the work.  Any long-term handler with an experienced therapy dog will say much the same. 

Stress research is a promising area and all those involved or interested in therapy dog work, whether as handlers, trainers, certifying organizations, recipient institutions, or policy makers, should be paying attention as more results come in. 

Sources:

Beerda, B., Schilder, M.B.H., van Hooff, J.A.R.A.M., de Vries, H.W., and Mol, J.A. (1998). Behavioural, Saliva Cortisol and Heart Rate Responses to Different Types of Stimuli in Dogs.  Applied Animal Behaviour Science, 58, 365-381.

Ferrara, M., Natoli, E., and Fantini, C. (2004). Dog Welfare During Animal Assisted Activities and Animal Assisted Therapy.  Tenth International Conference of the IAHAIO. Glasgow, Scotland (finding dogs did not show stressed behavior from AAT and AAA sessions).

Glenk, L.M., Kothgassner, O.D., Stetina, B.U., Palme, R., Kepplinger, B., and Baran, H. (2013). Therapy Dogs’ Salivary Cortisol Levels May Vary During Animal-Assisted Interventions. Animal Welfare, 22, 369–378.

Glenk, L.M., Kothgassner, O.D., Stetina, B.U., Palme, R., Kepplinger, B., and Baran, H. (2014). Salivary Cortisol and Behavior in Therapy Dogs During Animal-Assisted Interventions: A Pilot Study.  Journal of Veterinary Behavior: Clinical Applications and Research, 9(3), 98-106

Handlin, L., Hydbring-Sandberg, E., Nilsson, A., Ejdeb, ck.M., Jansson, A.U., and s-Moberg, K. (2011). Short-Term Interaction between Dogs and their Owners: Effects on Oxytocin, Cortisol, Insulin and Heart Rate: An Exploratory Study.  Anthrozoos Multidisciplinary Journal. People and Animals, 24, 301–315.

Haubenhofer, D.K., and Kirchengast, S. (2006). Physiological  Arousal for Companion Dogs Working with Their Owners in Animal-Assisted Activities and Animal-Assisted Therapy.  Journal of Applied Animal Welfare Science, 9, 165-172.

King, C., Watters, J., and Mungre, S. (2011). Effect of a Time-out Session with Working Animal-Assisted Therapy Dogs.  Journal of Veterinary Behavior: Clinical Applications and Research, 6, 232–238.

Marinelli, L., Mongillo, P. Salvadoretti, M., Normando S., and Bono, G. (2009a). Welfare Assessment of Dogs Involved in Animal Assisted Activities. Journal of Veterinary Behavior: Clinical Applications and Research, 4, 84-85. (Salivary cortisol levels and behavioral indications of acute stress were not elevated in therapy dogs visiting a retirement home over a period of seven weeks.)

Marinelli, L., Normando, S., Siliprandi, C., Salvadoretti, M., and Mongillo, P. (2009b). Dog Assisted Interventions in a Specialized Centre and Potential Concerns for Animal Welfare.  Veterinary Research Communications, 33 (Supplement 1), S93-S95.

Ng., Z.Y., Pierce, B.J., Otto, C.M, Buechner-Maxwell, V.A., Siracusa, C., and Were, S.R. (2014). The Effect of Dog-Human Interaction on Cortisol and Behavior in Registered Animal-Assisted Activity Dogs.  Applied Animal Behaviour Science, 159, 69-81

Odendaal, J., and Meintjes, R.A. (2003). Neurophysiological Correlates of Affiliative Behavior Between Humans and Dogs.  The Veterinary Journal, 165, 296-301.

Piva, E., Liverani, V., Accorsi, P.A., Sarli, G., and Gandini, G. (2008).  Welfare in a Shelter Dog Rehomed with Alzheimer Patients.  Journal of Veterinary Behavior, 3, 87-94

Serpell, J.A., Coppinter, R., Fine, A.H., and Peralta, J.M. (1999).  Welfare Considerations in Therapy and Assistance Animals: An Ethical Comment.  Chapter 18 in Handbook on Animal-Assisted Therapy” Theoretical Foundations and Guidelines for Practice. New York: Academic Press, 415-431. (The chapter has appeared in two subsequent editions of this book.)  

Vincent, I.C., and Michell, A.R. (1992). Comparison of  Cortisol Concentrations in Saliva and Plasma of Dogs. Research in Veterinary Science, 53, 342–345.

Deputies Stand by as Restaurant Excludes a Service Dog; Sheriff's Department May Be Liable

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People with service animals still encounter resistance to bringing their animals into places of public accommodation, such as restaurants.  They rightfully expect to be able to do this without difficulties but, if an issue arises, they hope that the police, if summoned, will at least be able to explain some of the rudiments of disability law to the employees of the business involved. 

Nevertheless, a number of cases suggest that some law enforcement agencies remain ignorant of the rights of individuals with disabilities who use service animals, and that this ignorance has too often been forgiven by courts.  A recent decision from the federal district court for the Western District of Louisiana, however, suggests that courts may not continue to shield officers who unthinkingly help a business bar or eject an individual with a service animal. 

Before getting to the specifics of the recent decision and three prior decisions that were completely unsuccessful in this regard, in the manner of a law school class let us pose a series of hypotheticals.  The following basic facts apply to each of the hypotheticals: 

You have a service dog—say, a seizure-alert dog that generally is able to alert to an oncoming seizure several minutes before you have one.  The dog is also trained to stay beside you and provide something for you to hold onto so that you can sit or lie down without injuring yourself during the first minutes of a seizure.  The dog has a vest but you do not always put the vest on the dog.  You do, however, keep some documents regarding the dog’s function with you at all times.  

Also assume that you are a member of a neighborhood watch team and one night a week patrol the neighborhood with your dog and another member of the team.  The neighborhood watch team has a meeting once a month.  Formerly the team met in houses of the members but it has become too large and a decision is made to move the meeting to a restaurant.  A diner nearby is chosen because it is convenient, can be walked to, and agrees to host the meeting and provide donuts for $50 if the meeting is held on a Monday night after 8 p.m., when business is slow in any case.  You have only been in the diner twice, but neither time did you have your dog with you. 

You take your dog to the neighborhood watch meeting.  The dog is not wearing a vest.  Outside the diner, the manager, who is greeting members of the watch team as they arrive, sees your dog and says that you cannot bring it into the restaurant.  You explain the dog is a service dog and pull the documentation regarding the dog’s function from a briefcase you are holding.  The manager refuses to look at the papers.  Several other members of the team take your side but the manager insists that the diner only admits guide dogs. 

Now, consider the following four hypothetical variations on what happens next:
  1. Because you are a member of the neighborhood watch, you have the local police station on speed dial and call the station to request assistance because your rights are being violated.  In five minutes a patrol car arrives.  The officer knows you and explains to the manager that your dog should be allowed the same access as would be given to a guide dog.  The manager calls up the owner of the diner, who backs up the manager’s decision to exclude the dog.  The manager remains adamant that you cannot bring the dog in.  The officer explains to you that he cannot force the manager to admit the dog, but that you have rights and can file a complaint in the matter.  You go home.
  2. The facts are the same except that the officer who responds to your call is not known to you and talks to the manager but does not attempt to convince him that he should admit both you and your dog to the diner.  The officer tells you that he can do nothing for you, that the diner has the right to refuse service to anyone, and that you must leave.  If you attempt to enter the restaurant the officer says he will have to arrest you and impound your dog.
  3. The facts are the same except that when you get to the diner and begin arguing with the manager, you do not need to call the police station because there is a police car in the lot and the officer in the car is eating a sandwich.  Although he sees your interaction with the manager, he says he will talk to you after he finishes his lunch break.  He makes a call to his girlfriend and talks to her for nearly twenty minutes before getting out of his car and listening to you.  You do not know this officer but he clearly does not know anything about the law of service dogs.  He says he will call his chief, as he has been instructed to do when situations arise with which he is not familiar.  By the time the chief calls him back you have been waiting for nearly an hour and the meeting has gone on without you. The manager locked the door so when the officer knocks the manager has to unlock it. The officer explains to the manager that his chief has told him that you are entitled to bring the dog into the meeting, but the manager still refuses.  The meeting is now almost over and you go home.
  4. The facts are the same except when you get to the diner there are two policemen outside the restaurant talking to members of the watch.  One of the officers is going to speak at the meeting and the other has accompanied him for moral support.  They have come as a courtesy to the neighborhood watch group.  When the manager tells you that you cannot bring your dog into the meeting, the officers see what is going on and you ask for their assistance.  They tell you that they cannot help you and that your problem is a federal matter on which they have no jurisdiction.  They go into the diner without speaking to the manager.  You and your dog walk home.
There seems to me to be enough of a moral failing on the part of the police in the last three hypotheticals that some level of liability should attach.  Nevertheless, decisions from which the hypotheticals were adapted (with a degree of poetic license) indicate that only the fourth situation might lead to any liability or even a serious reprimand from a court after the presentation of the case. 

Let us review the decisions from which I drew these hypotheticals. 

Pizzeria Ejects Patron with Service Dog

Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034 (8th Cir.1998) 

The employees of Cecil Whittaker’s Pizzeria asked Marilyn Pona, who suffered from degenerative spine and joint disease, to leave a pizzeria because she had a dog with her.  Pona alleged that the officers responding to the scene refused to explain the law regarding service dogs to the restaurant, but did inform her of her remedies, and asked her to leave the premises. 

Pona filed claims under the Americans with Disabilities Act, 42 U.S.C. 1983 (providing a civil action for a deprivation of rights), and the Missouri Human Rights Act.  She asserted that the police refusal to assist her in gaining access to the restaurant was due to a formal policy (Special Order 86-S-31) which directed police officers to take no enforcement action with regard to the Missouri statute (209.150) that gave her the right to be accompanied by a service dog in a place of public accommodation.

Cecil Whittacker’s Inc. moved for summary judgment on the basis that as the franchisor the pizzeria, it could not be liable under the ADA because it did not own, lease, or operate a place of public accommodation (as required to come under 42 U.S.C. 12182(a)).  The district court agreed.  The manager of the franchise had called Donald Glenn, president of CW, the franchisor, who told the manager that he “wouldn’t have any animals in [his] restaurant” because it “doesn’t look good for the franchise.”  Glenn denied making such a statement, but for summary judgment purposes it was assumed that he did.  The court said that such a statement by Glenn would not alter the fact that the franchisor had no control over the franchise in this regard and was at most giving advice. 

There were three judges and three opinions in this Eighth Circuit case.  All three judges agreed that the franchisor could not be held liable because of its lack of control of the franchise, even if an executive had given some advice to the franchisee’s management.  Two of the judges found that the City of St. Louis Board of Police Commissioners did not have a policy that effectively withheld enforcement services from disabled citizens.  There were some policy documents, but there were complex questions as to the authority under which they were issued and whether they applied to the particular situation involving Pona and the restaurant. Judge R.S. Arnold, however, disagreed with his colleagues and said there was in fact a policy that effectively withheld law enforcement services from disabled citizens. 

Judge M.S. Arnold held that because the ADA claims failed, a 1983 violation for deprivation of federal rights based on such claims must fail.  Also, an ADA violation is not actionable under 1983 because it must be presumed that the enforcement provisions of the ADA are the exclusive mechanism for enforcing the ADA.  He did state, however, that “I intimate no view on the question of whether Title III violations can ever form the basis for a cause of action under § 1983.” Judge Panner said more generally that ADA Title II and III claims are not cognizable as 1983 claims.  Judge R.S. Arnold did not mention 1983. 

Pona also argued that the St. Louis police officers violated the Missouri Human Rights Act, which makes it unlawful to deny anyone accommodations provided by any place of public accommodation on the grounds of handicap.  Judge M.S. Arnold doubted “the facts would support a finding that Ms. Pona was denied service at the pizzeria ‘on the grounds of … handicap.’ It was her dog, not Ms. Pona herself, to which the pizzeria raised objection.”  Judge Panner disagreed, saying that denial of services on account of a service dog was denial of services on account of a disability, but without further explanation agreed that the state law claim should be dismissed.  This could be because the franchisor was not in sufficient control to be liable or because no federal claim survived. 

Would anyone seriously argue that telling a person in a wheelchair not to bring it in a restaurant, though the person needing the wheelchair could not come in without it, was not a denial based on a disability? 

Popeye’s Manager Refuses Service to Customer with Hypoglycemia Alert Dog

Gipson v. Popeye’s Chicken & Biscuits, 942 F.Supp.2d 1303 (N.D. Ga. 2013)

Taylor Gipson has a dog named Bear that can detect his blood sugar level gets too high or too low.  On May 12, 2012, Bear alerted Gipson in a manner that indicated to him that his blood sugar was low and he entered a Popeye’s restaurant to order food, which would have corrected this condition.  He took a table near the back door to wait for his food while Bear lay quietly on the floor next to him. 

Shanika Parks, manager of the restaurant, came to Gipson’s table and asked if Bear was a seeing-eye dog.  Gipson replied that Bear was not and Parks demanded that he leave the restaurant with the dog.  Gipson tried to tell Parks that he was entitled to keep a service dog, even though it was not a guide dog, with him under federal law.  According to the Georgia federal district court (employing some passages from Gipson’s complaint):

“Parks ‘became agitated’ when Plaintiff stated he had a right under the Americans with Disabilities Act to remain in the restaurant with Bear… Her ‘agitation escalated’ when Plaintiff would not leave…. Parks stated that Plaintiff was ‘costing her customers’ and ‘demanded’ that Plaintiff and Bear ‘get out of her restaurant.’ … Despite Parks’s ‘escalating hostility and agitation,’ Plaintiff ‘calmly’ explained to Parks why he was legally entitled to have Bear in the restaurant.”

Parks then threatened to call the Cobb County Police Department to remove Gipson and Bear.  Gipson again refused to leave and explained that he had a right to have Bear in the restaurant.  Parks made good on her threat and called the police, as did Gipson, who assumed that the police would explain his rights to Parks. 

Before the Cobb County Police arrived at the Popeye’s restaurant, another customer approached Parks and told her that Gipson had a right to have a service dog in the restaurant.  The customer even apologized to Gipson for Parks’ behavior.It is at least a small comfort that the public is becoming aware of the rights of users of service animals, apparently somewhat more than some employees of national businesses and some police officers. Popeye’s restaurants, according to its answer to the complaint, have sound policies with regard to service animals, even if some employees do not know about them.

Anyone who has worked in disability law, or civil rights law, would assume on the facts that the police, by this time in the history of American law, would arrive and tell the manager that for nearly a generation service dogs have included many types of dogs besides guide dogs, as recently happened at a restaurant near Boston. Continuing with the court’s narrative of events:

“When the police arrived, Parks quickly went outside to meet the officer and loudly demanded that Plaintiff and Bear be ordered off the property or removed by force…. Plaintiff’s mother arrived on the scene to hear Parks’s conversation with the police…. Plaintiff also then spoke with Officer Fuller and explained why he believed under the Americans with Disabilities Act that he and Bear had a right to be in the restaurant…. Plaintiff’s mother offered Officer Fuller a card which explained Plaintiff’s rights, but Officer Fuller declined to look at it… Officer Fuller stopped Plaintiff from speaking and said he ‘knew the law.’  Officer Fuller spoke with Parks again and she again stated that Plaintiff had to leave the property…. Officer Fuller explained to Plaintiff that because the restaurant was ‘private property,’ Plaintiff and Bear were trespassing and had to leave immediately…. Although Plaintiff again tried to explain his rights, Plaintiff was eventually ‘forced to comply’ with Parks’s demand that he leave the restaurant.”

Narrative Portion of Incident Report in Popeye's Dispute
Officer Fuller’s incident report reflects that Parks was aware of Gipson’s contention that the dog was a service dog, but also that she believed that several customers walked inside the business and then left because of the presence of the dog. The fact that a service animal might be disturbing to another guest is not a reason for barring access to a place of public accommodation unless the dog is out of control (which probably would indicate it is not a service animal).  The incident report states that Bear was wearing a service dog vest.  The vest does not prove that Bear was a service dog under federal law (as the Department of Justice has indicated in regulatory releases), but the ability of the dog to alert to hypo- or hyperglycemia does suggest that the dog very likely qualified as a service dog. 

Cobb County argued that Gipson was not denied any service by Officer Fuller, who was responding to the calls both from Parks and Gipson.  Officer Fuller informed Gipson that because the restaurant was private property and because the manager wanted Gipson to leave, he would need to leave.  The County argued that Fuller’s actions did not deny “services, programs, or activities” of a public entity under Title II of the ADA, which applies to state and local governments.  The court cited Bledsoe v. Palm Beach County Soil & Water Conservation District, 133 F.3d 816 (11th Cir. 1998) as providing that discrimination by a public entity need not be limited to “services, programs, or activities” of the entity but to all discrimination by the entity.  The district court then analyzed whether there had been discrimination in Officer Fuller’s handing of the matter:

“[T]he court focuses on whether Plaintiff has alleged sufficient facts to show that the exclusion, denial of benefit, or discrimination was by reason of Plaintiff's disability. The court finds that Plaintiff has not. Based on the facts alleged in the complaint, Officer Fuller responded to the scene and listened to the position of both sides. The restaurant manager informed Officer Fuller that she wanted Plaintiff to leave because Plaintiff's service dog was scaring away other patrons. Plaintiff and his mother told Officer Fuller that Plaintiff had the right to be accompanied in the restaurant by his service dog. Officer Fuller determined that the restaurant was private property and the restaurant manager could ask Plaintiff and his service dog to leave. Officer Fuller, therefore, did provide services to both Plaintiff and the restaurant manager. Plaintiff disagrees with the outcome of those services, but there is no doubt that Officer Fuller responded to the scene and attempted to resolve the conflict. There can be no expectation that the police will always resolve a conflict in one's favor and Plaintiff has alleged no facts which would show that Officer Fuller's determination that the restaurant manager could ask Plaintiff and his service dog to leave the private property was one he reached on the basis of Plaintiff's disability.”

The court then makes a highly questionable analogy:

“If the court were to determine that Plaintiff was denied services based on his disability because Officer Fuller did not convince the restaurant manager that Plaintiff and his service dog could remain in the restaurant, the police would become responsible for sorting out civil liabilities. While one might argue that whether a service dog is permitted in a restaurant is a fairly straight-forward question (and one that the court will need to address with respect to Popeye's liability in this civil action), another patron might challenge the degree of slope of a handicapped ramp into the restaurant, a much more difficult question to resolve on the scene. There can be no expectation that police officers are equipped to address that type of situation when responding to a disturbance call. County police officers are not civil lawyers. Plaintiff has not alleged that the officer violated his constitutional rights. Most significantly, Plaintiff is not left without a remedy; he has sued Popeye's Restaurant to enforce his rights under the Americans with Disabilities Act.”

Listening to a store manager without remarking that her position likely violates a customer’s rights, then telling the customer with a service dog to leave, is to be distinguished from a situation where an officer attempts to inform the store manager that her actions could lead to liability for both herself and her employer, and cautioning the manager that the officer expects he may be called to testify if the customer files suit.  Explaining remedies to a person with a wheelchair might be the only appropriate action where the slope of a ramp is too great, because nothing else wouldbe possible at the moment.  Here, more of a dialogue initiated by the officer appears to have been both possible and desirable. 

Courthouse Staff Delays Admission of Witness with Service Dog

Sears v. Bradley County Government, 821 F.Supp.2d 987 (ED Tenn., 2011) 

Brenda Sears has a seizure disorder and uses a service dog named O’Neal.  She went with the dog to the Bradley County Criminal Justice Center on August 11, 2009, to testify for a friend’s son.  Sergeant Brown, operating the metal detector and security check at the courthouse, informed Sears that dogs were not allowed in the courtroom, to which she replied that the dog was a service animal.  It took 20 minutes before Brown spoke with a court officer and showed him papers that had been given him by Sears’ husband regarding service animals.  The papers were passed onto the judge in the case, who said he would look at them after lunch.  The judge eventually said Sears could enter the courtroom with the dog. 

During the lunch hour that the judge took, Sears stated that she was required to remain standing because there was no chair for her to use and that she was not allowed to use a restroom in the courthouse, forcing her to use one in a Taco Bell nearby. 

Sears filed claims under the ADA, Title II, 42 U.S.C. 1983, and various state law torts.  The Tennessee federal district court dismissed the ADA complaint against Brown in his individual capacity, finding no individual liability under Title II of the ADA.  Brown was granted summary judgment as to the complaint against him in his official capacity as, according to the court, the facts did “support an inference Sergeant Brown intentionally discriminated against Plaintiff on account of her disability.”  This, of course, raises the question already mentioned as to whether refusing to allow an individual with a disability to use a dog can amount to discrimination against a person because of a disability. The court said Brown was entitled to qualified immunity on the 1983 claim. 

As to the county, “[f]ailure to supervise is not a viable theory for recovery of compensatory damages in a Title II ADA claim, since such failure is necessarily not directed at a particular disabled individual.”  Failure to train Sergeant Brown was also “not a specific act of intentional discrimination against the Plaintiff herself….”  The county said that “Sergeant Brown's conduct towards Plaintiff was not motivated by discriminatory intent but his genuine bewilderment at how to handle service animals. Moreover, Sergeant Brown's efforts to seek approval from Judge Randolph, including his forwarding of the papers provided by Plaintiff's husband to Judge Randolph's court officer, indicate he was not attempting to discriminate against Plaintiff.”  The claims against the county also failed as the court did not believe Sears would be able to establish “an unconstitutional policy or custom, nor actionable failure to train or supervise its officers….”  

As to the 1983 claim, the county argued that it was entitled to summary judgment “because, setting aside the question of whether Plaintiff even suffered a constitutionally-cognizable injury, Plaintiff cannot show the County had an official unconstitutional policy or custom which was responsible for the injury, or that the County was ‘deliberately indifferent’ to the rights of Plaintiff and similarly-situated individuals."  The court agreed, and noted that after the incident, “Bradley County has adopted a policy and held a training session addressing the needs of disabled individuals with service animals.” This subsequent effort to educate the County’s law enforcement personnel turned out to be significant in the case discussed next (where no such effort was made despite a previous incident). 

In other words, delay and indifference do not amount to constitutional violations, at least when the subsequent admission of the service dog can be said to preclude any proof that there was intentional discrimination against someone with a disability using a service dog. 

(For an earlier case on similar facts, which was discussed in the opinion in Sears, see Valder v. City of Grand Forks, 213 F.R.D. 491 (2003). Also, as my legal colleagues will be quick to point out if I don’t, the preamble to Department of Justice final regulations regarding access to Title II facilities specifically mentions courthouses.  75 Fed. Reg. 56192 (September 15, 2010).)

Former Police Officer with Service Dog Barred from Neighborhood Watch Meeting

Albright v. Sheriff’s Department of Rapides Parish, No. 12-2117, 2014 US Dist LEXIS 132946 (2014)

David Albright has two dogs that, in a complaint filed in a Louisiana federal district court, he says are service dogs that alert to episodes of cataplexy and narcolepsy, which cause seizures and instantaneous sleep spells.  Albright says that the dogs alert five minutes in advance to impending episodes, which can occur three to four times a day.

On August 8, 2011, Albright went to the Sieper Junction Café in Rapides Parish to attend a Neighborhood Watch meeting, where members of the Parish Sheriff’s Office were to speak.  Albright brought one of his service dogs, Zoey.  The manager of the café, Teresa Cutts, blocked Albright from entering the café with his dog.  Albright produced documentation that Zoey was a service dog, but Cutts continued to bar his entrance. 

The Rapides Parish Sheriff’s Office responded to the dispute.  Deputy Gunter spoke separately to Albright and Cutts.  A second deputy, who was not identified, arrived and told Albright he had to leave.  Deputies Davis and Walters, who had come not because of the incident but to speak to the Neighborhood Watch group were nearby.  Albright, a former police officer who had known Davis and Walters professionally, found them and asked them to intervene.  They declined, saying it was not their job to enforce federal law. 

This was apparently not the first time that Albright had dealt with the Rapides Parish Sheriff’s Department on a service dog matter.  His pleadings indicate that he had been blocked from entering the Rapides Parish Courthouse by a deputy several years before, though in that case a senior deputy intervened and permitted Albright to bring the dog inside.  Albright had discussed the courthouse incident with Deputy Davis, who Albright says agreed with him that more training on the Americans with Disabilities Act and service dogs was needed for law enforcement personnel in the Parish.  No courses or training had been initiated by the time of the restaurant incident. 

The district court determined that the Rapides Parish Sheriff’s Office “is a public entity within the meaning of Title II of the ADA.”  To establish discrimination under the ADA, the court said that Albright had to establish that (1) he is qualified for protection under the statute, (2) he was “excluded from participation in, or being denied benefits of, services, programs, or activities for which the public entity is responsible, or is otherwise being discriminated against by the public entity,” and (3) the exclusion, denial of benefits, or discrimination was by reason of the disability. 

To receive compensatory damages for ADA violations, a plaintiff must show intentional discrimination.  Employers are vicariously liable for the discriminatory acts of their employees.  Title II, however, does not allow actions against a person in his individual capacity, only in his official capacity.  Therefore, insofar as Albright sued Deputies Walters and Davis in their individual capacities, their motion for summary judgment was granted by the district court. 

The public entity involved was the Rapides Parish Sheriff’s Office, and any official capacity suit could only be brought against Sheriff Hilton, the current sheriff of the Parish, not against former Sheriff Wagner.  Nor could an official capacity claim be filed against deputies Walters and Davis, and therefore claims against Walters, Davis, and Wagner were dismissed. 

As to the three ADA claim requirements enumerated above, Albright filed medical records on his diagnosis and treatment.  For purposes of the motion for summary judgment, this information was adequate for the court to accept that Albright was a qualified individual under the ADA.  Also for purposes of the motion, “the presence and participation of Deputies Walters and Davis on behalf of the sheriff’s office is a service, program or activity performed by a public entity, in this case, the Rapides Parish Sheriff’s Office.”

The most difficult of the three issues that had to be resolved to assign liability under the ADA was the third, whether the exclusion was due to a plaintiff’s disability.  Louisiana district courts are within the Fifth Circuit Court of Appeals.  The Eighth Circuit has determined that to place liability on a public entity, that entity must have had “a policy, practice, or custom in place discriminating against disabled individuals with service animals.”  (Paraphrasing Pona, discussed above.) 

The Louisiana federal district court distinguished the situation before it from the one in Gipson v. Popeye’s:

“We agree that whether a service dog is permitted in a restaurant is a straight-forward question of law, but disagree that an officer would be liable if he did not convince the restaurant manager to permit plaintiff to enter with his service animal. The instant case is not one in which a deputy valiantly defended the civil rights of the plaintiff only to be refused by the restaurant manager.  Rather, the officer did not educate the restaurant manager about the ADA nor did he inform Mr. Albright of his civil rights against the restaurant. We are troubled that Defendants may have intentionally discriminated against Mr. Albright and been deliberately indifferent to his civil rights. This case is also distinguishable [from prior cases] because Mr. Albright had a previous experience in which he was refused entry into a courthouse with his service animal and personally notified Deputy Davis, a Defendant in this matter. This is very different from Sears in which an individual with a service animal was delayed entry into a courthouse and the county responded by holding a training session to address the needs of disabled individuals with service animals and display the county's new service animal policy in public buildings…. Here on the other hand, the parties agree the officers receive no training about the ADA, and Defendants seems to have no intention of training their officers about the ADA.”

The court also emphasized that Sears was “factually distinguishable from the case at bar as it involved a delayas opposed to completely barring entry and the Court found the police officer did not intentionally discriminate against the disabled party.” (emphasis added)

Therefore, the case can now proceed on Albright’s ADA claim against the sheriff’s office.  Also, the court allows for the possibility of compensatory damages, saying that although intent is necessary for such damages, the refusal to take any action upon Albright’s approaching the officers may indicate intent. 
               
Motions for summary judgment on the other federal and state law claims against the officers were granted, including claims for deprivation of various constitutional rights under 42 U.S.C. 1983 (as duplicative of the ADA claim, tantamount to allowing Albright “two bites at the same apple”).  Motions for summary judgment under Louisiana state law claims were also granted the officers, including a Louisiana White Cane Law claim and a claim under Louisiana human rights statutes (because the restaurant manager, not the officers, had denied Albright’s entry into the restaurant with the dog).  Nevertheless, a significant part of the case withstood the defense efforts to stop the litigation, and it is to be hoped that a lesson will be taught and learned. 

Proliferation of Service Animal Types and Bogus Claims Make Enforcement Difficult

It must be acknowledged that some of the service dogs described here were accompanying individuals whose disabilities were likely not evident to the businesses and police involved.  This does not mean the dogs were not legitimate service animals under the ADA, but it does mean that some level of inquiry was appropriate.  Users of service dogs should be familiar with where the boundaries lie, as I have detailed in Service and Therapy Dogs in American Society and in prior blogs here.  The rights of those with disabilities as to specially trained dogs do not extend to dogs that do not meet regulatory standards provided by the Department of Justice or by case law in jurisdictions where courts have analyzed the ADA and other relevant statutes. 

The ADA does not provide the same protections to pets, companion animals, and emotional support animals (as opposed to psychiatric service dogs), though emotional support animals receive similar protection to service animals in certain transportation and housing contexts.  What cannot be tolerated, any more than blind prejudice against users of qualified service animals, is the increasing alacrity with which some people claim that their pets are service animals merely because they do not want the inconvenience of leaving the dog at home. 

A recent case demonstrates that users of bogus service animals can be a problem for law enforcement officers.  In Lerma v. California Exposition and State Fair Police, 2014 WL 28810 (ED Cal., 2014), Regina Lerma attempted “to bring a pet Cocker Spaniel puppy into an amusement park and pass it off as a trained service animal under the ADA.”  When California Exposition and State Fair Police Officer Siegrest “asked plaintiff what task the dog had been trained to perform, plaintiff responded by stating ‘all I have to tell you is it’s a service dog and I’m going to sue you.’  … When asked how she would handle the dog’s need to relieve itself or whether it was housebroken, she responded again that she was going to sue the officer.”  At a deposition in the case Lerma filed, she “admitted that her dog was not individually trained to perform any task for her…. [P]laintiff conceded at her deposition that she took the dog to the Park because she ‘needed the dog to be able to get through the day,’ to help her feel better, and because the children wanted to bring it there.”  The defendants’ motion for summary judgment was granted.

There may be cases where police do not take the action they should because they doubt a claimed service animal is legitimate. The more people make such inappropriate claims for their pets, the more difficulties they create for those whose dogs are necessary for their disabilities. The ADA is not a magic spell that anyone can cast to ward off inconvenient questions about a dog that does not qualify as a service animal.  
 
Is There Too Much of a Shield for Police Involvement in Service Animal Discrimination?

What is the current state of the law with regard to the potential liability of the police in responding to a complaint by someone with a service animal?  It appears that if the police engage in some dialogue with the parties, even without making any attempt to explain to the business that its refusal may be a violation of an individual’s civil rights, which could result in significant liability, there will very likely be no liability on the part of the police.  Nor need the police be in any hurry to respond so long as they eventually do so, though at some point delay will be tantamount to denial and it must be hoped that courts would draw a line. A failure on the part of a police authority to educate staff as to rights of individuals with service animals will add considerable force to plaintiff’s arguments.       

I began writing this blog after the Popeye’s case was issued several years ago, but wanted to find a way to argue that there could be recovery against police officers abetting denials of service to individuals with service animals.  The best I could find at the time was to take some of the language from the non-prevailing views of the three-judge panel in Pona, the 1998 case, and rather remote extrapolations from non-service dog disability cases.  My arguments at the time, however, struck several of the people I asked to comment and frankly even me as too close to one of those rants in a law review where a professor who has never practiced takes an impossible moral high ground that would never be accepted by a judge in a trial and might not even be seriously argued by a disability rights lawyer in an actual case.  Now Albright gives me hope that things may be changing and I have finally completed this blog.

Conclusion 

It is too late in the history of American law on service animals for such things to be happening.  Everyone would be shocked if a restaurant refused to seat a customer based on race, and even more shocked should a police officer help the restaurant throw the customer out.  Failure on the part of police to understand the rights of individuals with service animals, and a lack of any educational effort at the departmental level, should deserve a severe reprimand and in some cases should result in liability. An exclusion of someone with a legitimate service animal from a restaurant is as much an exclusion on account of a disability as an exclusion of someone with a guide dog, a walker, or a wheelchair.

By allowing the police to participate in an exclusion from a public accommodation, courts permit the police to become agents of private enterprises that are denying rights guaranteed under the Americans with Disabilities Act.  This must stop. 

Appendix

The above discussion takes a particular trajectory through four cases and does not discuss every issue by which plaintiffs have attempted to impose liability on officers and their supervising agencies. The following table fills in some of the gaps for those wishing this level of detail. Since there were three separate opinions in Pona v. Cecil Whittaker’s, the judges in that case are listed individually. 

Case/Judge
Title II
42 U.S.C. 1983
Qualified Immunity
State Law Claims
Pona v. Cecil Whittaker’s
No recovery
No recovery
Not discussed
Dismissal of trial court affirmed
MS Arnold
No recovery (no policy)
Because ADA claim fails, 1983 claim based on it must fail; also ADA violation is not actionable under 1983 because it must be presumed that enforcement mechanism of ADA must be exclusive
NA
Doubts facts would satisfy state law grounds, dismissal appropriate
Panner
No recovery (policy not targeted at persons with disabilities)
Agree with MS Arnold as ADA Title II and III claims are not cognizable as 1983 claims
NA
Denial of services on account of service dog was denial of services on account of disability, but agrees that state law claim should be dismissed (without further explanation of latter point)
RS Arnold
Recovery possible (policy effectively withheld services from disabled citizens)
Not discussed
NA
Not discussed
Gipson v. Popeye’s
No recovery (Title II services provided by response and attempt to resolve conflict)
Not in issue  
Not in issue
Not in issue
Sears v. Bradley County (defendant Sergeant Brown)
No recovery in individual capacity but could be heard as to official capacity, but intent could not be shown
Could have been liable had Sears shown she suffered violation of clearly established constitutional right of which a reasonable person would have known, but burden not met
Sergeant Brown entitled to qualified immunity on 1983 claim
State law claims dismissed without prejudice
Id. (defendant Bradley County)
Failure to supervise not valid theory under ADA
No recovery (no unconstitutional policy or custom, nor actionable failure to train or supervise)
NA
Id.
Albright v. Rapides Parish
Recovery possible as to Parish (see text discussion for distinction between liability of officers and sheriff’s department)
Duplicative of ADA
Not discussed
Summary judgment granted officers

Thanks to Leigh Anne Novak for suggestions.

CDC Seeks Data on How Vets with PTSD Are Helped by Dogs; Therapy Dog Organizations Could Provide Valuable Input but May Not Be Participating

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The Centers for Disease Control has begun distributing two surveys, one to veterans and one to “assistance dog providers,” in an attempt to gather data on how dogs may be helping veterans find jobs and reintegrate into society.  The survey for veterans to complete is getting a negligible response rate, so the CDC is now asking the Office of Management and Budget to approve an incentive for veterans who at least attempt to complete the form.  The incentive would be a $50 prepaid VISA card. 

An Assistance Dog Providers Survey is getting a sufficient response in the CDC’s opinion, but it must be questioned whether all the organizations that could provide valuable input are aware of this survey’s existence.  “Assistance dog,” as defined by the CDC, includes therapy dogs, yet at least one of the largest national therapy dog organizations I contacted (not the one to which I belong) was unaware the survey was being conducted.  Neither the current release in the Federal Register, nor a preliminary release on September 9, discussed in a prior blog, defined assistance dog and the definition would only become apparent to organizations from project documents that have to be requested from the CDC.  Although the response rate from service dog training organizations might be adequate, the use of service dogs by veterans is only part of spectrum of canine relationships that the CDC is attempting to gather data about. 

The issues with the two surveys are most easily discussed separately.  

Veterans Survey

The survey for veterans asks about their experience with pet ownership and how various experiences with animals have helped them physically and emotionally, and whether such experiences have been helpful in getting them reintegrated into society.  To date, only 66 veterans have completed the survey, barely 1% of the 6,000 responses the CDC has been hoping to get. 

One reason for the poor response rate is indicated in the request sent to the Office of Management and Budget.  In describing changes that are being made to a flyer that will be distributed through various veterans’ and other organizations, the CDC says that it has added a statement to the flyer “indicating that the survey is not affiliated with the Veterans Administration (VA), as some veterans may have negative feelings about the VA that would discourage their participation in the survey.” The CDC is certainly correct in this supposition as the VA has actively inhibited many veterans from obtaining and using service animals, as discussed here before. 

Another issue for some veterans may be the nature of the questions asked.  The CDC states:

“This survey will ask potentially sensitive questions, such as the race/ethnicity of the respondent and the respondent’s diagnosis. This demographic information is necessary to analyze any consistent patterns among veterans’ race/ethnicity and psychological diagnosis, as well as with level of attachment to pets and the need for assistance animals for specific populations of veterans. This information will be used to inform assistance dog training organizations of the needs of veterans obtaining assistance dogs. It will also be a step toward understanding the idiosyncratic needs of veterans based on various psychological diagn[oses].”

The time to complete the survey is estimated by the CDC to be up to an hour, which may also discourage some. 

In order to overcome these and perhaps other unknown reasons for the poor response rate to date, the CDC is now seeking approval from the Office of Management and Budget to offer a $50 VISA gift card for veterans “completing all or portions of the survey.” 

Assistance Dog Providers Survey

The second survey the CDC is distributing is for assistance dog providers, about which the CDC appears confident it will get enough responses.  This survey “will be sent by email to approximately 1,000 service dog providers,” from which the CDC hopes to get 300 responses.  As of October 17, the CDC reports that 91 organizations had completed this survey.  Three hundred might seem like an optimistic number if one thinks only of organizations that train service dogs for veterans, but the agency defines assistance dogs rather broadly as a term including—

“service dogs, service animals, therapy dogs, visitation dogs, recreation support dogs, social therapy dogs, guide dogs, hearing dogs, seeing eye dogs, eye dogs, sight dogs, mobility dogs, mobility assistance dogs, balance dogs, disability dogs, hearing dogs, hearing ear dogs, signal dogs, psychiatric service dogs, PTSD dogs, anxiety dogs, emotional support dogs, skilled companion dogs, home help-mate dogs, companion dogs, court dogs, medic alert dogs, seizure alert dogs, seizure response dogs, diabetic alert dogs, autism dogs, detection dogs, facility dogs, facilitated service dogs, 3rd party dogs, READ dogs, high schooled assistance dogs, emergency response dogs, search & rescue dogs, career dogs, and police dogs.” 

This includes a great many types of trained and professional dogs.  Despite this all-encompassing approach, the current version of the survey instrument being sent to assistance dog organizations defines only four types of assistance dogs, as follows (in the wording and emphasis of the survey itself):
  • A service dog performs specialized skills directly related to the handler's disability. Service dogs meet the standards for public access as protected by the Americans with Disabilities Act (ADA).
  • A professional therapy dog is handled, utilized, or supervised by a health or human services professional in a therapeutic setting. Although they may have specialized skills, they are not service dogs or visitation dogs.
  • A visitation therapy dog provides support, comfort, and companionship to individuals in settings such as hospitals and nursing homes. They are not service dogs nor professional therapy dogs, and do not have public access rights.
  • A support dog provides emotional or physical support or assistance related to the handler's disability, usually only in the handler's home (they may have very limited public access rights). They are not service dogs, professional therapy dogs, or visitation therapy dogs.
For each of these four categories, organizations are asked how many and what percentage of dogs that enter the program end up performing the desired function and how many dogs are put in service annually.  For professional therapy dogs, the questionnaire asks “with which health and human services professionals have your professional therapy dogs been placed?” Respondents may choose from occupational therapists, physical therapists, psychologists, physicians or psychiatrists, counselors, nurses, social works, and other (please specify). 

The survey questionnaire seems to be based on a model that is most appropriate for a service dog training program, not for a certifying organization where dogs are trained by other individuals or groups and pass a qualifying test administered by the organization.  Visitation therapy dog respondents are not asked about what sorts of facilities the therapy dog teams are working in.  Since such information is gathered to varying degrees by the certifying organizations, the CDC may be missing an opportunity to learn more about where veterans are being offered animal-assisted activities and therapies. 

Value of Survey Information

The CDC’s primary aim in conducting the surveys is to gather information about how bringing dogs into the therapies and lives of veterans may help them find jobs and happiness.  It is apparently not the only reason, however, as the October 23 release states that it is “part of a larger project that will identify priorities and new opportunities for research, as well as address policy implications associated with public access rights afforded to service dogs by the Americans with Disabilities Act.”  Whether the CDC has an understanding with the Department of Justice to share results, or whether the DOJ has asked the CDC for input regarding possible changes to its access rules, is not clear.  The reference may not be specific to service dog access issues in any case.  It is curious that in defining a support dog, the CDC says that “they may have very limited public access rights.”  This could refer to travel and housing contexts, but the CDC could also be thinking that changes might be made to rules regarding transportation modes under control of the Department of Justice, e.g., taxis.   

Another possible area of change with regard to animal access might be hinted at in another type of function specifically defined by the CDC, the professional therapy dog.  The CDC says these dogs are neither service dogs nor visitation dogs, but does not mention whether they have access beyond that of pets.  This is the only specifically defined assistance dog type where access is not referred to in the CDC’s definition.  In Service and Therapy Dogs in American Society (p. 110), I mention one instance where a dog that might belong in this category had limited access under a state statute, but I know from personal communication with one researcher that there are those in those working in treatment facilities who believe that dogs involved in animal-assisted therapies should have access rights similar to service dogs.  For instance, in New York City, handlers of therapy dogs are often limited in the facilities they can visit by the lack of access to subways and buses.

The CDC expects the results of the Assistance Dog Providers Surveyto help with research projects being conducted at West Virginia University and has asked that Dr. Joseph Scotti of the WVU Psychology Department to be named a collaborating investigator.  The submission to OMB also refers to Lindsay Parenti, of the same department, one of whose papers on the categorization of assistance animals I cited in a prior blog.

Conclusion

The CDC appears to be distancing itself from the VA’s policy of granting a single service dog umbrella organization a monopoly on who can provide service dogs for veterans.  The agency also recognizes that a comprehensive study of the benefits of dogs for veterans involves looking across a number of types of interactions veterans are having with dogs, from service dog pairings to companion animals to occasional interactions with therapy dogs. 

As I have noted previously, gradients of interaction and qualification must be taken into account before a determination can be made as to where public resources are best placed and before legal restrictions can be designed equitably.  Transferring authority to a private organization without understanding the complexities of how veterans can be given the best opportunities to be aided in what they face is irresponsible, yet amazingly enough the Army has followed the blind lead of the VA in this regard, and has kept a ban on dogs for PTSD.

Scientific results cannot be handicapped by expectations and still be scientific, but research on the benefits of dogs is generally tending towards a positive assessment of their ability to make many people with both physical and psychological disabilities more comfortable, and ultimately more successful.  Cures from animal interactions are rare and should not be a sole criterion for success.  The CDC is to be commended for looking at the complexities of the issue and trying to obtain input by those most in need of the psychological and physical benefits of human-animal interactions. The agency has also taken steps to get in contact with, and obtain information from, a broad range of stakeholders working with dogs and veterans.  By making some changes to the Assistance Dog Providers Survey, even more useful data could be obtained. 

Veterans, trainers, and organizations interested in obtaining surveys and background documents should contact Leroy A. Richardson, 1600 Clifton Road, MS–D74, Atlanta, GA 30333 or send an email to omb@cdc.gov.  Mr. Richardson can be reached directly at 404-639-7570. 

Landlord Okays Service Dog, but Balks at Fenced-In Area for Dog’s Exercise

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The federal district court for Oregon has determined that a case involving a tenant’s need for accommodations in order for her to care for a service dog must go to trial, that it cannot be resolved on cross motions for summary judgment.  Although there was some question as to the adequacy of the dog's training, the major issue concerned the tenant’s desire to put a fence around her patio and part of the common lawn of Rosewood Homes, arguing that this is the best way for her to let the dog out to relieve herself and get some exercise. 

The court analyzed the law of reasonable accommodation as it applies to the service dog user’s ability to care for a dog.  Since most court decisions in this area have concerned whether a tenant can obtain or keep a dog at all, the focus on this tenant’s request for a fence makes analyzing the case valuable for anyone seeking accommodations to better care for a service animal in a housing context.  There will be a full trial on the unresolved issues in 2015. Oregon Bureau of Labor and Industries ex rel. Mayorga v. Housing Authority, 2014 US Dist. LEXIS 146671 (DC Or. 2014)

Tenant Seeks Service Dog

In 2005, Joy Mayorga, who suffers from degeneration of the lumbar disk, facet osteoarthritis, and fibromyalgia, asked permission from Housing Authority of Douglas County, which owns Rosewood Homes, where she lives, to obtain a service dog that would exceed the Authority’s weight and size restrictions for pets.  Mayorga’s request stated that she would “try and get a dog that meets the physical, mental, and also the temperament and attitude requirements necessary for the dog to be trained as a service dog.”  She included a letter from her doctor, Fred Black, MD, stating that “living and caring for a dog would be beneficial for Ms. Mayorga’s health.  It is my recommendation that she have a large, very sturdy dog that is at least eight months old.”  The Authority authorized Mayorga to have a dog for medical reasons. 

Mayorga’s condition confines her to bed five to seven days a month, sometimes consecutively.  Rosewood Homes consists of single-story duplex residences separated by common grassy areas shared by all residents of the complex.  Behind each unit is a concrete patio, approximately 9 x 20 feet, which is accessed by a sliding glass door.  Several months after making her initial request, Mayorga put up a fence around her patio, which the Authority directed her to remove.  Mayorga had advised the Authority that she was going to place some lattice on the corner of her patio to support flowers but, according to the Authority, had specifically stated that she was not fencing in her patio.  She more specifically requested a fence after that, but the request was denied. 

In 2008, Mayorga requested permission to bring a dog that might be trained to be a service dog into her home.  The dog, an American Staffordshire Terrier, one of two breeds called a pit bull, was five years old and weighed about 60 pounds, but had not yet been trained.  Mayorga had been a dog trainer, but not a service dog trainer.  A representative of the Authority, Janeal Kohler, asked for verification of vaccination and licensing, and then approved Mayorga’s request to bring the dog into her home. 

Mayorga then asked to fence off a kennel area behind her unit where Asia could exercise and relieve herself.  In one document, Mayorga said the fenced area would be 9 feet by 35 feet, but in another an area of 20 feet by 36 feet.  Most of the fenced area would be the patio but there would be “a bit of grass area” for the dog.  The Authority said that Mayorga could use a portable dog kennel, 3 feet by 16 feet in length, to be taken down when not in use and not attached to the building or concrete.  Mayorga responded that this would not provide sufficient exercise space for the dog and would be prohibitively expensive.  She also said that the dog, when tethered outside, another possible way of giving the dog exercise suggested by the Authority, was teased and approached by other people. Mayorga asked that her initial request be reconsidered.  Kohler said that Mayorga’s proposed kennel would infringe on common space and suggested instead that she consider a dog walker, a more suitable assistance animal, or a temporary tether. 

Medical Release Request and Doctor’s Letter

At this point, Kohler requested that Mayorga sign a medical release so that the Authority could contact Dr. Black, but Mayorga declined to sign it, saying it was unlawful.  She also got a letter from a veterinarian and a manager of a training group stating that Asia needed an exercise area where she could be off leash.  Kohler agreed to provide Mayorga with a more carefully restricted medical release form.   Meanwhile, Dr. Black provided the following letter in support of Mayorga’s fencing request:

My patient Joy Mayorga, has given me permission to share the following information with you. Ms. Mayorga explained to me that she needs this letter from me because she has requested to be allowed to fence off an area for her service dog (which I had previously prescribed for her) thus allowing the dog to go outside on its own.

Because of her disability she has days when she can barely walk. Days when she even has to spend most of her day in bed. There is no way to determine when she will have such days nor how long they will last. At times this situation will interfere with her ability to take the dog out on a leash, even just long enough for the dog to relieve itself. She also has other health conditions that would be negatively affected by not allowing the accommodation she is requesting. All in all, I feel the best solution for Ms. Mayorga to keep and maintain her dog, is to allow her to be able to just open the door and let the dog out.

With regard to the dog's health, I can only say that because of the slow rate of Ms. Mayorga's walking, the dog will receive very little exercise. Other th[a]n that I am not in a position to speak to the dog's well being -- only Ms. Mayorga's. For her sake, I hope something can be worked out that will allow Ms. Mayorga to keep her service dog.

This time the request was denied because of (1) Mayorga’s refusal to provide written permission for physician verification, (2) a temporary tether was all she needed, (3) she could get an animal walker, and (4) there was risk in the proposed enclosure to third parties.  Kohler also said that two employees of the Authority had complained that Asia had behaved aggressively towards them.   A more senior official at the Authority indicated that Dr. Black’s letter obviated the need for the release form. 

As a side note, Dr. Black’s correspondence fits within the recommendations Dr. Thomas and I made in our article in the Journal of Forensic Psychology Practice concerning how medical professionals should write letters for patients with service and support animals.  The letters were specific to the patient, not canned documents obtained from a website, and considered how the specific issues presented relate to the patient’s condition. 

Mayorga and Oregon Bureau File Complaints

In 2010, Mayorga filed an administrative complaint against the Authority with the HUD and the Oregon Bureau of Labor and Industries.  The latter agency investigated the complaint and filed formal charges against the Authority and three individuals under Oregon Revised Statutes 659A.145 (Discrimination Against Individual with Disability in Real Property Transactions Prohibited) and 42 U.S.C. 3604 (Discrimination in the Sale or Rental of Housing and Other Prohibited Practices).  The Authority exercised its right to have the case heard in a state circuit court. 

In 2011, the Authority’s Board of Commissioners approved the Authority’s director obtaining bids for a possible vinyl fence and some discussions were held with a contractor.  No fence was put up, however, and in 2013 the Oregon Bureau filed a complaint against the Authority in state circuit court, which the Authority removed to federal district court.  Mayorga intervened as a plaintiff.

Federal Court’s Analysis

Judge Michael J. McShane, U.S. District Judge, observed that a “service animal, like any other assistance device, may require an additional accommodation to enable its effective use.”  Thus, an employer may be required to provide a ramp or widen a door for wheelchair travel.  The request to fence off a kennel area was such a request for an accommodation, which is to be granted if necessary to afford Mayorga the equal opportunity to use and enjoy her dwelling and if it is reasonable under the Fair Housing Act.  To prove necessity, Mayorga had to show that but for the accommodation, she would likely be denied an equal opportunity to enjoy the housing of her choice.  Giebeler v. M&B Assocs., 343 F.3d 1143 (9th Cir. 2003).

The facts indicated that Mayorga was sometimes bedridden for days and could not use the tether, presumably a long leash or a rope, as a substitute for a kennel, and in any case putting the tether on caused her pain.  There were some inconsistencies in the timing of events, however, in that Mayorga appeared to have attempted to erect a fence in the same general location even before the need to have it for the dog arose and she had provided the Authority “with an evolving explanation of her need for the accommodation.”  The judge also found some haziness in the record that made it impossible to determine whether the Authority had made improper medical inquiries regarding Mayorga, given that the Authority had the right to request information necessary to evaluate Mayorga’s disability-related need for accommodations, particularly when Mayorga’s condition was not necessarily readily apparent or already known to the Authority. 

Is Asia a Fully Trained Service Animal?

Judge McShane described Mayorga’s use of the dog as by 2014 involving the following:

“Mayorga's main physical impairment is pain caused by her lumbar disk degeneration and facet osteoarthritis…. Mayorga's pain is aggravated by bending, stooping, and walking…. Asia, Mayorga's service animal, is primarily used for stability support within her home. For example, Asia assists Mayorga in traveling up and down stairs, and walks alongside her in case Mayorga loses her balance…. If Mayorga falls, she is able to push off and/or be pulled by Asia to get off the floor…. Asia generally does not accompany Mayorga to the grocery store, doctor's office, church, or her great grandchild's school…. Mayorga does, however, infrequently walk Asia on a leash around the block, to the mail box, and to the office.”

Supporting and helping someone with mobility impairments stand after a fall fit within the functions of a mobility-impairment service animal, but it is not clear why Mayorga did not need the dog’s assistance in performing many errands.  Also, the judge found himself “unable to make any type of credible finding as to the adequacy of Asia’s training.”  It is not clear if Asia’s functions specific to Mayorga’s condition were not fully established, or if the judge is referring to Asia’s training with regard to being in public.  Mayorga initially described Asia as a “possible service animal,” and in 2008 the Authority had apparently received complaints of aggressive behavior from the dog, possibly indicating that some level of obedience training was still needed.  Is Asia’s potential aggressiveness still a problem?  The difficulties described in using a tether might suggest that Asia’s training in recall was not complete. 

The judge may have been concerned that it would be inequitable to order accommodations needed in part because the dog was not a fully trained service dog.  This issue usually arises with emotional support dogs that provide comfort but are not trained to do work or perform tasks specific to a disability.  That does not appear to be the case here.  Rather, the court may be considering what limits might be appropriate in an order covering a dog trained to perform tasks or do work related to a disability but not trained on some basic obedience commands.  The use of a dog walker for giving the dog exercise might be appropriately considered in such a situation.  

Conclusion

Judge McShane determined that a trial was needed “because a fuller record will afford a more substantial basis for decision.”  It will be important to tailor injunctive relief to the conditions obtaining at the time of the trial.    

This is not a case where a landlord adamantly refused to consider a valid request for a service animal and declined to even discuss the matter with the tenant.  The Housing Authority seems to have rethought some of its positions on its own, acknowledging for instance that its first request for a medical release was too broad.  The Authority seriously looked at the possible fencing of part of the area behind Mayorga’s unit.The court correctly saw the record so far developed as inadequate to assure a fair ruling. 

As of this writing, a jury trial on the matter is scheduled before Judge McShane on January 27, 2015. It is to be hoped that the judge will write an opinion on whatever final resolution is reached at trial.  

Thanks to Leigh Anne Novak for valuable comments. 

VA to Allow More Service Dogs in Facilities; Therapy Dog Access Rules Also Proposed

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In the Federal Register for November 21, the Department of Veterans Affairs proposed regulations on animal access to VA facilities.  The proposal is a considerable expansion of the current access rule, which has remained unchanged for 29 years:

“Dogs and other animals, except seeing-eye dogs, shall not be brought upon property except as authorized by the head of the facility or designee.”

This one-sentence rule had become so inadequate, in only referring to "seeing-eye dogs," that most facilities were using a rule regarding what service dogs the VA would provide reimbursement for as an access rule. This funding rule, 38 CFR 17.148, states that the VA will generally pay benefits only if the dog and the veteran "have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation...."  Benefits, according to the preamble to the final rules, are not provided "for a dog to mitigate the effects of  a mental illness that are not relate to visual, hearing or mobility impairments," which excludes most service dogs for PTSD. Applying this rule as an access rule meant that many veterans could not bring legitimate service dogs into VA facilities, and could not keep them in VA residential and inpatient facilities.  This was causing a great deal of pain. 

When it finalized the funding rule in 2012, the VA had stated that it was in the process of revising the service dog access rules to make them “fully compliant with 40 U.S.C. 3103(a).”  That section provides that guide dogs "or other service animals accompanying individuals with disabilities and especially trained and educated for that purpose shall be admitted to any building or other property owned or controlled by the Federal Government on the same terms and conditions, and subject to the same regulations, as generally govern the admission of the public to the property."  In addition, legislation enacted in 2012, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, P.L. 112-154, section 109, which is titled Use of Service Dogs on Property of the Department of Veterans Affairs, amended 38 U.S.C. 901 to include a subsection reading:

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

It was conceivable, particularly under 38 U.S.C. 901(f)(2), that the VA would use its accredited-organizations only funding rule as the basis for an access rule, and many VA facilities and even the U.S. Army assumed that this would be the case

The proposal released on November 21 actually goes much further than these statutes might together require and in fact would make the VA's rules on service dog access largely if not entirely consistent with rules issued by the Department of Justice in 2010.  Even more surprising, the VA is now the first federal agency to consider carefully what sort of access rules should apply to therapy dogs coming into VA facilities, either for specifically designed therapy programs or as visitors to cheer up patient and resident populations.

Written comments are being sought and can be submitted until January 20, 2015. The easiest place to submit comments is upload them on the regulations.gov website.

Defining “Service Animal”

The proposed rules largely replicate the definition of “service animal” adopted by the Department of Justice in September 2010 (amended in 2011 to change the phrase “handler’s disability” to “individual’s disability,” presumably in recognition that some service dogs, such as autism service dogs, may not be handled by the person with the disability).  The Department of Justice made clear in 2010 that a service dog could be trained for a range of mental disabilities, which the VA now accepts for purposes of access, explaining:

“We explained in the proposed rulemaking associated with 38 CFR 17.148 that VA does not yet have sufficient evidence to prescribe mental health service dogs as part of a veteran’s treatment plan, and therefore cannot at this timeoffer benefits to support the use of such dogs. 76 FR 35163, June 16, 2011. However, the issue of whether the prescription of mental health service dogs is clinically appropriate to necessitate the provision of benefits under § 17.148 is much narrower than the issue of whether we should allow mental health service dogs to access VA facilities while accompanying individuals with disabilities. Therefore, we believe it is consistent to permit the presence of mental health service dogs on VA property for purposes of ensuring access for individuals with disabilities, while still (at this time) restricting the provision of benefits to support mental health service dogs in § 17.148.”

The VA also states that the DOJ definition is “the most relevant source for consideration of the issue of service animal presence on VA property….” The following table places the definition now proposed beside the DOJ’s definition and the prior definition used for the funding regulation.  Language not found in more than one definition is in italics. Key words are in bold. Notice the considerable overlap between the newly proposed VA access language and the 2010 DOJ language for ADA purposes. 

Comparison of Definitions of “Service Animal” under VA Rules (Access and Funding), and Department of Justice Rules under the ADA
Proposed 38 CFR 1.218(a)(11)(viii) (VA access)
28 CFR 36.104 (ADA per DOJ)
38 CFR 17.148 (VA funding for service dogs)
Aservice animal means any dog that is individually trained to do work andperform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter.
Service animal means any dog that is individually trained to do work orperform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
(a)(1) Servicedogsare guide or service dogs prescribed for a disabled veteran under this section.
* * *
(c) Recognized service dogs. VA will recognize, for the purpose of paying benefits under this section, the following service dogs:
(1) The dog and veteran must have successfully completed a training program offered by an organization accredited by Assistance Dogs International or the International Guide Dog Federation, or both (for dogs that perform both service- and guide-dog assistance). The veteran must provide to VA a certificate showing successful completion issued by the accredited organization that provided such program.
(2) Dogs obtained before September 5, 2012 will be recognized if a guide or service dog training organization in existence before September 5, 2012 certifies that the veteran and dog, as a team, successfully completed, no later than September 5, 2013, a training program offered by that training organization. The veteran must provide to VA a certificate showing successful completion issued by the organization that provided such program. Alternatively, the veteran and dog will be recognized if they comply with paragraph (c)(1) of this section.

As does the DOJ, the VA definition excludes an animal whose only function is providing crime deterrent effects, emotional support, well-being, comfort, or companionship, as these do not constitute work or tasks.  This would not, however, exclude psychiatric service dogs that perform tasks specific to a mental condition since "disability" is defined to include a “physical or mental impairment.” 

Inquiries and Documentation

Following the DOJ rules, “an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal.” The individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.  The preamble acknowledges that “in most instances, it is apparent that an animal is trained to do work or perform tasks for an individual with a disability.”  Emphasis is added to the “or” between “work” and “task” in this passage from the preamble because the proposed regulatory definition of service dog itself uses “do work andperform tasks,” as noted above.  The significance of the conjunction will be discussed further below. 

Proof of vaccinations and veterinary examinations must, however, be available “if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program.”  This is to include proof of a current rabies vaccination, as required by local law, and proof of “a comprehensive physical examination by a licensed veterinarian within the last 12 months that confirms immunizations with core canine vaccines (in addition to the required rabies vaccine) distemper, parvovirus, and adenovirus-2, and screening for and treatment of internal and external parasite[s] as well as control of such parasites.”

“Additionally, the individual with a disability would be asked to confirm in writing that at least seven days have elapsed since the dog recovered from (as applicable), any of the following: vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucus membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female dogs.”

Any documentation that could be requested “would only be related to the health and wellness of the animal, and would not be related to an animal’s level of training or other certification that the animal was a service animal.”

No Specific Training Organization Designated

The preamble states that its new definition of service animal is consistent with the definition in the funding rule: 

“We reiterate that we do not interpret section 109 to require that a service dog must be trained by any specific entity, and that section 109 does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally. We would not impose an accreditation requirement to verify that a service dog has been trained appropriately to gain access to VA property.”

The only way that section 109 can be interpreted as not requiring training by “any specific entity” involves some casuistry, and many VA facilities have been limiting access to dogs trained by member organizations of ADI or IGDF, but let us accept that access and funding can certainly be distinguished. 

Service Dogs in Training Excluded

While the DOJ definition’s use of “trained” might be assumed to mean that a dog “in training” is not a service dog, the VA has chosen to emphasize this by adding a sentence to this effect in the definition.  This is probably an effort to give VA facilities an argument for excluding poorly trained, as yet untrained, or just bogus service dogs.  (The Department of Transportation, in service animal regulations, allows airlines to choose their own policy on whether to admit service animals in training. See discussion at 73 Fed. Reg. 27659, May 13, 2008; discussed in Service and Therapy Dogs in American Society at pages 129 to 131.)

Miniature Horses

The VA does not follow the DOJ in granting a sort of provisional status to miniature horses, which can be trained to perform guide and mobility functions:

“After some consideration, we would exclude the access of miniature horses in this proposed rule because we find their larger size would make them more difficult to control within a facility or remove from a facility as needed. Horses are prey animals and thus have a heightened flee response when they perceive things in their environment as a threat. Coupled with this heightened response, VA healthcare facilities typically have smooth flooring that is able to withstand industrial cleaning and polishing (e.g. vinyl composite tile, polished concrete, etc.), which is difficult for hooved animals to walk on and may contribute to horses having difficulty ambulating or even falling. The presence of a miniature horse in VA facilities is also more likely to be disruptive and may result in egress issues because large numbers of people would likely congregate to see the miniature horse. Additionally, we are not aware that miniature horses generally can be reliably trained to be housebroken in the same manner as service dogs trained to hold their waste until it could be eliminated in outdoor areas. For instance, it would not be appropriate, especially in VA health care facility settings, to permit a miniature horse to eliminate its waste in a specialized waste bag the horse might wear while indoors. All of these factors present too high of a risk to legitimate safety concerns, both to persons and the animal, especially in VA health care facilities, to permit the presence of a miniature horse as a service animal.”

The miniature horse lobby, such as it is, should consider commenting on these observations in the preamble. 

Access Requirements for Qualifying Service Animals

Merely because a dog fits within the definition provided in the rules does not guarantee access.  The proposed rules require that it “must be in a guiding harness or on a leash, and under control of the individual with the disability at all times while on VA property.”  The VA is not responsible for the care of the animal, so if the handler is present for a procedure that will require separation from the dog for a time, the animal should not be brought in the first place as it will not be “under the control of the individual with the disability at all times.”  This point is emphasized:

“Another impossible or impractical requirement to impose upon service animals would be the requirement to remain continuously indoors in intensively monitored settings, such as acute inpatient hospital settings. In such settings, veterans would typically be recovering from an acute medical episode, and would not likely be able to effectively attend to the needs of a service animal (e.g. taking the service animal outside, or feeding or watering the service animal). Staff in these inpatient hospital settings must not be expected to set aside their patient monitoring and care duties to instead attend to the needs of a service animal. Additionally, the immediate needs of veterans in these settings would be most appropriately fulfilled by medical staff and not a service animal (for instance, getting in and out of a hospital bed).”

The preamble provides a list of hospital and facility locations from which service animals should be excluded:
  • Operating rooms and surgical suites
  • Areas where invasive procedures are being performed
  • Acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units)
  • Decontamination, sterile processing, and sterile storage areas
  • Patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals
  • Food preparation areas
  • Any area where personal protective equipment must be worn.
Restricting dogs from these areas makes sense, of course, and the VA notes that such restrictions are consistent with CDC guidance that it is generally appropriate to exclude a service animal from areas that employ general infection control measures and that require persons to undertake added precautions. Service animals can also be excluded from cemeteries, construction and maintenance sites, and grounds keeping and storage facilities, though as to cemeteries permission may be granted to service animals and even pets under certain circumstances that will be discussed below. 

A service dog can be denied access or removed “to maintain the general health and safety of veterans, VA employees, other VA stakeholders, and other service dogs.”  The preamble indicates that the VA is not restricting service dog access to those trained “by accredited entities,” but that it will “only guarantee access to VA property for those service dogs that can dependably behave in accordance with typical public access standards for public settings.”  Thus, “a service animal will be removed from VA property if the animal is not housebroken.” Other reasons for removal include acts of aggression, including “growling; biting or snapping; baring its teeth; and lunging.” Also, “disease or bad health … would warrant a service animal being removed from VA property, such as external signs of parasites on a service animal (e.g. fleas or ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).” 

If a service animal is excluded or removed, the VA emphasizes that the handler can still obtain medical treatment and other services, just without the animal. 

Police Dogs, Research Animals, Animals at Funerals and Parades

The VA’s regulation which covers service dog access is technically included in a section entitled “Security and Law Enforcement at VA Facilities” and the proposed regulations specify that animals with law enforcement functions may be admitted to VA facilities with the approval of the facility head or a designee.  The preamble uses the example of an explosives detection dog.  The regulation also permits “[a]nimals under the control of the VA Office of Research and Development may be permitted to be present on VA property,” which would apply to certain research hospitals and other research environments. 

Pets and other animals can come onto VA property or on property under control of the National Cemetery Administration “for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards.”  The preamble notes that this is in line with the longstanding military tradition of having horse-drawn caissons at funerals. 

Therapy Animals

Perhaps the most surprising aspect of the proposed regulations is the reference to “nonservice animals” involved in therapy, i.e., therapy dogs, which are specified as appropriate for both structured therapeutic interventions (animal-assisted therapy, or AAT), as well as for visiting patients (animal-assisted activities, or AAA).  The proposed rule does not specifically state that such animals must be dogs, though that may be generally assumed.  AAT is

“a goal-directed intervention that incorporates the use of an animal into the treatment regimen of a patient, as provided or facilitated by a qualified VA therapist or VA clinician. AAT is designed to improve human physical, social, emotional, and cognitive function, and is provided in a variety of settings and may be group or individual in nature. Clinical disciplines such as physical, occupational, recreational, and speech therapies use AAT animals to perform tasks that facilitate achievement of patient-specific treatment goals and objectives.”

Paperwork is necessary for such an animal to be used in that “an AAT animal may be present on VHA property if the animal is used to facilitate achievement of patient-specific treatment goals, as documented in the patient’s treatment plan.”  Such documents would have to “be kept in the areas where patients receive AAT, as it is [in] these areas that an AAT animal would be exposed to patients as well as others.” 

Therapy dogs not involved in goal-directed interventions can also be admitted if they “provide opportunities for patients to experience benefits.”  Required vaccination records and other health documents on AAA dogs would also have to be kept in the wards and areas where patients encounter them.The requirement that documents be kept where dogs visit makes sense, though in my experience the documentation is often kept in a central volunteer office and not on wards.  I always carry such documents with me during visitations in any case. 

Residential Animals in Nursing Homes and Mental Health Facilities

The proposed rules allow VA Community Living Centers (CLCs) or Mental Health Residential Rehabilitation Treatment Programs (MHRRTPs), on approval of the head of a facility or designee, for “nonservice animals to be present on VHA property if those animals were present for purposes of a residential animal program….”  Here, it appears that animals other than dogs would be acceptable since there is no specified restriction and cats and birds might, if properly cared for, also be a good fit in residential animal environments. 

CLCs are long-term care settings that provide nursing home care services to veterans.  MHRRTPs are mental health care treatment facilities.  Both, according to the preamble, “have experienced a significant change in philosophy of care, which has resulted in an initiative to transform the culture of care in VA from a medical model where the care is driven by the medical diagnosis, to a person-centered model where the care is driven by the needs of the individual as impacted by medical conditions.”  This includes making these environments more homelike.  As with therapy dogs, documentation would be required:

“We would state that any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), which would be documented in patient treatment plans. We believe this requirement ensures that animals would not be merely residing on a VA CLC or MHRRTP, but rather would be permitted extended access to VHA property only for the therapeutic benefit of veterans.”

The animal would also have to pass all health requirements specified for other animals in VA facilities. 

VA’s Proposed Rule Is Broad, but Is It as Broad as DOJ’s?

The statutory requirements for access regulations would have only required that the VA broaden its access rules to include service dogs beyond guide dogs.  Service dogs would have to be trained, but the VA could have easily imposed a requirement regarding an “appropriate accrediting body,” as specified in 38 U.S.C. 901.  Instead, the VA determined that the section “does not prohibit VA from granting access to a broader group of service animals than those trained by accredited entities generally.  We would not impose an accreditation requirement to verify that a service dog has been trained appropriately to gain access to VA property.” No cognate of “accredit” appears in the proposed regulation. 

Indeed, the VA has largely adopted the position of the Department of Justice in its service animal access rules for public accommodations and for state and local governments.  There are two exceptions. As already noted, DOJ allows that a service animal must be “individually trained to do work or perform tasks for the benefit of an individual with a disability,” whereas the VA’s proposal requires that the animal be “trained to do work and perform tasks….”  This is not likely an oversight as DOJ included an extensive discussion of why it did not require that service dogs always be able to perform tasks, stating that doing work is a somewhat broader aspect of the definition “encompassing activities that do not appear to involve physical action.”  An example would be a psychiatric service dog that “can help some individuals with dissociative identity disorder to remain grounded in time or place.”  DOJ stated:

“It is the Department’s [DOJ’s] view that an animal that is trained to ‘ground’ a person with a psychiatric disorder does work or performs a task that would qualify it as a service animal as compared to an untrained emotional support animal whose presence affects a person’s disability. It is the fact that the animal is trained to respond to the individual’s needs that distinguishes an animal as a service animal. The process must have two steps: Recognition and response. For example, if a service animal senses that a person is about to have a psychiatric episode and it is trained to respond, for example, by nudging, barking, or removing the individual to a safe location until the episode subsides, then the animal has indeed performed a task or done work on behalf of the individual with the disability, as opposed to merely sensing an event.” (75 Fed. Reg. 56267, September 15, 2010)

At the very least, the VA should explain why it chose “and” where DOJ used “or” in defining what a service animal is.  The other distinction between the two definitions was that the VA did not include the examples inserted in the DOJ definition section:

“Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”

It may be that the VA regarded these as examples, not necessary for the definition, but it also may be that the VA is not certain it wants to sign onto “doing work” as sufficient in itself to label a dog a service animal.  Thus, the italicized language about helping persons with psychiatric and neurological disabilities by preventing…” might include non-task work under “preventing,” thus opening the door for service dog functions that the VA ultimately disagrees with DOJ as appropriate.  There is no indication that the VA is attempting to exclude psychiatric service dogs as long as they “do work and perform tasks” with regard to a mental disability.  The definition of disability specifically states that for purposes of the rules, “a disability means a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment, or being regarded as having such an impairment.” 

Will U.S. Army Change Its Access Policies?

First Page of Army Directive 2013-01, signed by Secretary of the Army John M. McHugh
In a letter sent to a service dog trainer in 2012, the subject of a prior blog,  and in Army Directive 2013-01, also the subject of a prior blog, Army Secretary John McHugh stated that the Army’s access policy was following the lead of the VA in terms of only acknowledging dogs accepted as service dogs by the VA, i.e., dogs trained by organizations belonging to Assistance Dogs International or the International Guide Dog Federation.  In the Directive, McHugh states that if the VA policy changes, the “Surgeon General will review and propose amendments to this directive for my approval.”  Since the Army’s policy related to access, not funding, the VA’s policy has indeed changed and it must be presumed that the Surgeon General is reviewing possible changes to make recommendations to the Secretary of the Army. 

Conclusion

The VA is to be commended for going much further than the mandate of the statutes that directly apply to its service dog policies, and for following the sophisticated lead of the Department of Justice, at least in most regards.  The agency is to be particularly praised for providing a regulatory framework for the admission of therapy dogs, both for AAT and AAA, to VA facilities, as well as for allowing for residential pets in certain VA facilities. 

The regulations on their face only limit service animals to dogs, following the Department of Justice.  It appears that therapy animals and residential animals could be of other species, but it might be best to clarify this.  Service miniature horses are not accepted, but horses are specifically mentioned as having been used at funerals in military tradition.  (When I was a child, my father took me to a funeral of a friend of his and I still remember the old soldier’s horse with the saddle on backwards following the hearse.)  In any case, the final rules should specify what breadth the VA is allowing here, unless the VA wants to leave this issue open for further experience and reflection. 

Veterans with service dogs who have been having access problems with non-ADI trained dogs should consider commenting to support the VA’s broad access concept.  Veterans with service dogs that are trained to “do work” but do not “perform tasks” should consider asking for clarification on the status of their dogs under the proposal.  Therapy dog handlers should consider commenting to support the regulatory access that is being proposed.  Veterans in residential facilities should consider commenting to reinforce the acceptance of the concept of “residential animals.” 

This is a major and welcome development for veterans, as well as for service dog users generally, for therapy dog handlers and their organizations, and for all Americans concerned with the abuses that the VA has been known for in its treatment of veterans.  The VA has done something right for a change. 

I want to particularly thank Bart Sherwood of Train a Dog, Save a Warrior (TADSAW) for carefully reading a draft of this blog and making many important observations.  Also thanks to Leigh Anne Novak and Dennis Civiello for comments.  

Appendix
§ 1.218. Security and law enforcement at VA facilities.
(a) * * *
(11) Animals. (i) Service animals, as defined in paragraph (a)(11)(viii) of this section, are permitted on VA property when those animals accompany individuals with disabilities and are trained for that purpose. A service animal must be in a guiding harness or on a leash, and under control of the individual with the disability at all times while on VA property. VA is not responsible for the care or supervision of a service animal. Service animal presence on VA property is subject to the same terms, conditions, and regulations as generally govern admission of the public to the property.
(ii) A service animal will be denied access to VA property or removed from VA property if:
(A) The animal is not under the control of the individual with a disability;
(B) The animal is not housebroken. The animal must be trained to eliminate its waste in an outdoor area; or
(C) The animal otherwise poses a risk to the health or safety of people or other service animals. In determining whether an animal poses a risk to the health or safety of people or other service animals, VA will make an individualized assessment based on objective indications to ascertain the severity of the risk. Such indications include but are not limited to:
(1) External signs of aggression from the service animal, such as growling, biting or snapping, baring its teeth, lunging; or
(2) External signs of parasites on the service animal (e.g. fleas, ticks), or other external signs of disease or bad health (e.g. diarrhea or vomiting).
(iii) Service animals will be restricted from accessing certain areas of VA property under the control of the Veterans Health Administration (VHA property) to ensure patient care, patient safety, or infection control standards are not compromised. Such areas include but are not limited to:
(A) Operating rooms and surgical suites;
(B) Areas where invasive procedures are being performed;
(C) Acute inpatient hospital settings (e.g. intensive care units, stabilization units, locked mental health units);
(D) Decontamination, sterile processing, and sterile storage areas;
(E) Patient rooms or patient treatment areas where it is indicated that a patient has animal allergies, or has fear or phobia(s) of animals;
(F) Food preparation areas; and
(G) Any areas where personal protective equipment must be worn.
(iv) Service animals will be restricted from accessing certain areas of VA property under the control of the National Cemetery Administration (NCA property) to ensure that public safety, facilities and grounds care, and maintenance control are not compromised. Such areas include but are not limited to:
(A) Open interment areas including columbaria;
(B) Construction or maintenance sites; and
(C) Grounds keeping and storage facilities.
(v) If a service animal is denied access to VA property or removed from VA property in accordance with (a)(11)(ii) of this section, or restricted from accessing certain VA property in accordance with paragraphs (a)(11)(iii) and (iv) of this section, then VA will give the individual with a disability the opportunity to obtain services without having the service animal on VA property.
(vi) Unless paragraph (a)(11)(vii) of this section applies, an individual with a disability must not be required to provide documentation, such as proof that an animal has been certified, trained, or licensed as a service animal, to gain access to VA property accompanied by their service animal. An individual may be asked if the animal is required because of a disability, and what work or task the animal has been trained to perform.
(vii) An individual with a disability will be required to comply with the following requirements, if such individual will be accompanied by the service animal while receiving treatment in a VHA residential program:
(A) The individual with a disability must provide VA with documentation that confirms the service animal has had a current rabies vaccine (one year or three year interval, depending on local requirements);
(B) The individual with a disability must provide VA with documentation that verifies the service animal has had a comprehensive physical exam performed by a licensed veterinarian within the last 12 months that confirms immunizations with the core canine vaccines distemper, parvovirus, and adenovirus-2, and that confirms screening for and treatment of internal and external parasites as well as control of such parasites; and
(C) The individual with a disability must confirm in writing that at least seven days have elapsed since the dog recovered from any instances of vomiting, diarrhea, urinary or fecal incontinence, sneezing or coughing, open wounds, skin infections or mucous membrane infections, orthopedic or other conditions that may interfere with ambulation within the VA facility, and estrus in intact female service dogs.
(viii) A service animal means any dog that is individually trained to do work and perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition. Service dogs in training are not considered service animals. This definition applies regardless of whether VA is providing benefits to support a service dog under § 17.148 of this chapter.
(ix) Generally, animals other than service animals (“nonservice animals”) are not permitted to be present on VA property, and any individual with a nonservice animal must remove it. However, a VA facility head or designee may permit certain nonservice animals to be present on VA property for the following reasons:
(A) Animals may be permitted to be present on VA property for law enforcement purposes;
(B) Animals under the control of the VA Office of Research and Development may be permitted to be present on VA property;
(C) Animal-assisted therapy (AAT) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAT is a goal-directed clinical intervention, as provided or facilitated by a VA therapist or VA clinician, that incorporates the use of an animal into the treatment regimen of a patient. Any AAT animal present on VHA property must facilitate achievement of patient-specific treatment goals, as documented in the patient’s treatment plan. AAT animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients receive AAT.
(D) Animal-assisted activity (AAA) animals may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. AAA involves animals in activities to provide patients with casual opportunities for motivational, educational, recreational, and/or therapeutic benefits. AAA is not a goal-directed clinical intervention that must be provided or facilitated by a VA therapist or clinician, and therefore is not necessarily incorporated into the treatment regimen of a patient or documented in the patient’s medical record as treatment. AAA animals must be up to date with all core vaccinations or immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible in the area(s) where patients may participate in AAA.
(E) Animals participating in a VA Community Living Center (CLC) residential animal program or a Mental Health Residential Rehabilitation Treatment Program (MHRRTP) may be permitted to be present on VHA property, when the presence of such animals would not compromise patient care, patient safety, or infection control standards. A residential animal program on a VA CLC or a MHRRTP is a program that uses the presence of animals to create a more homelike environment to foster comfort for veterans, while also stimulating a sense of purpose, familiarity, and belonging. Any VA CLC or MHRRTP residential animal present on VHA property must facilitate achievement of therapeutic outcomes (such as described above), as documented in patient treatment plans. Residential animals on a VA CLC or MHRRTP must be up to date with all core vaccinations and immunizations, prophylactic medications, and regular health screenings as determined necessary by a licensed veterinarian, and proof of compliance with these requirements must be documented and accessible on the VA CLC or MHRRTP.
(F) Animals may be present on NCA property for ceremonial purposes during committal services, interments, and other memorials, if the presence of such animals would not compromise public safety, facilities and grounds care, and maintenance control standards.
(x) For purposes of this section, a disability means a physical or mental impairment that substantially limits one or more major life activities of the individual; a record of such an impairment; or being regarded as having such an impairment.
* * * * *
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