Courthouse Dogs: Can Being Too Cuddly Violate the Constitution?

This summer in Dutchess County, New York, a fifteen-year old faced the unfathomable– having to relive an incredibly painful memory by testifying against her father, Victor Tohom, that he raped her and impregnated her.

Over the years, legislators, courts and prosecutors have tried to find ways to help witnesses like this teen who are faced with the stress of testifying against a defendant whose mere presence may be intimidating. One method is to allow a “recent complaint witness” to testify that a victim of a sexual assault made a complaint shortly after the attack. But this evidence is deemed to be hearsay that can only buttress the witness’s testimony – it cannot stand on its own as evidence of the assault.

Another method is to allow a witness to testify via closed circuit television in a separate room while the defendant stays in the courtroom. This procedure has been challenged as a violation of a criminal defendant’s right to confront the witnesses against him. Even Justice Scalia has found this option to be constitutionally infirm, arguing in his dissenting opinion in Maryland v. Craig that if the Sixth Amendment’s Confrontation Clause means anything, it means having a live body in the witness chair who can be cross examined by the defendant’s counsel.

In order to help the fifteen-year old get through her testimony at trial, the Dutchess County prosecutors called in Rosie – New York’s first certified court therapy courthouse dog. Rosie is a beautiful Golden Retriever whose job is to give support to testifying witnesses. As the fifteen-year old reached difficult moments in her testimony, she was able to lean into Rosie and take comfort from her presence.

Tohom’s defense attorneys objected to Rosie’s presence. One argument the attorneys made is that Rosie’s presence biased the jurors by making them empathize with the teenager. A second argument is that a therapy courthouse dog is trained to encourage a person under stress to continue to testify, but a witness may be under stress whether they were testifying truthfully or lying. Another argument is that the attorneys are unable to cross examine the dog.  Yet another argument is that jurors may pick up on subtle actions such as the dog nudging the witness or the witness leaning into or hugging the dog, and think that those parts of the testimony are somehow more truthful or significant. In fact, during Tohom’s trial, the dog reportedly nudged the teen at one point when she hesitated in her testimony. Although no New York courts have dealt with the issue of a courtroom courthouse dog, the judge pointed to a case allowing a witness to have a teddy bear while testifying as grounds to allow Rosie into the witness box.

As a former public defender, I feel strongly about upholding the constitutional rights of the accused. As a dog lover, I marvel at the ways that dogs can help us in our greatest time of need. I understand the defense attorneys’ concerns with the presence of a dog like Rosie, particularly with a jury trial. That said, I find the use of a therapy courthouse dog a much better option than the closed circuit television procedure. At least with a therapy courthouse dog, there is a witness in the witness chair, preserving the defendant’s Confrontation Clause rights. Any risk that jurors could be biased by the dog’s presence can be counteracted with well crafted jury instructions.  For a detailed look at the use of courtroom courthouse dogs, take a look at the article, Using Dogs for Emotional Support of Testifying Victims of Crime by Marianne Dellinger.

Washington State was the first to have a courtroom therapy courthouse dog in 2003. Since that first case, several other states have followed. It will be interesting to follow what the appellate courts think of therapy courthouse dogs like Rosie, and whether more states join the movement to use courthouse dogs.  For more about courthouse dogs, visit the wonderful website of Courthouse Dogs, LLC at www.courthousedogs.com.

Special thanks to Ellen O’Neill Stephens of Courthouse Dogs for visiting and commenting on the proper terminology for these wonderful dogs, as well as the training, purpose and proper use of courthouse dogs!

UPDATE (8/28/11):  Thanks to The Bark for posting Dogs In the Courtroom, Part Two, with a more in depth explanation — thanks to Ellen O’Neill Stephens with Courthouse Dogs — of the distinction between therapy dogs and facility dogs.  If you would like to know more, take a look!

UPDATE (1/14/12):  Prosecutors in Prince William County, Virginia are joining other jurisdictions in allowing dogs to aid testifying victims.  Read more about it in this Washington Post article.

The Amazing Things that Dogs (and Kids) Can Do

I have just started reading the wonderful book, Dog Sense, by John Bradshaw, in which Bradshaw discusses (among many other topics) how science can help redefine dogs’ roles in our lives. We may not need our dogs to help us hunt and herd livestock in our daily lives these days. But as we learn more about their incredible capabilities, dogs are taking on ever more specialized tasks. Three wonderful examples came to the forefront as I watched the news and my Facebook account this past week.

We’ve all heard of drug-sniffing and bomb-sniffing dogs – but a sperm-sniffing dog? Apparently, a Swiss K-9 named Rapports Opus is specially trained to detect sperm. Rapports Opus recently caught the scent of sperm at a crime scene in a Swiss park where a woman claimed a man had forced her to perform oral sex on him. Officers sent the evidence for testing, and the DNA in the sample matched that of the 23-year-old suspect. The suspect has been apprehended, and is currently facing trial on rape charges. That is one impressive dog!  Thanks very much to Nan Arthur of Whole Dog Training and Christy Hill of Coaching Creative Canines for posting this story.

Speaking of K-9s, a local K-9 unit recently lost a hero. Lightcap, a bomb sniffing K-9 with the Fairfax County Police Department, served from 2006 to 2011. Not even cancer kept this dedicated K-9 down, with Lightcap continuing his service during his final year even while battling the disease. Lightcap not only sniffed bombs, but also performed work such as finding shell casings at the scene of shootings. Lightcap passed on July 14 of this year. May this hero rest in peace. Special thanks to Lesley Sullivan of The Pawkeepers for bringing this story to my attention.

Of course, law enforcement is not the only area where dogs use their specially honed detection skills. Service dogs are becoming more and more prevalent, including service dogs who can detect seizures. Evan Moss, a seven-year-old boy here in Northern Virginia, suffers from epilepsy, which is causing severe and debilitating seizures. Evan recently heard about seizure detection dogs. He and his parents realize that a seizure detection dog would be life-altering for Evan, and contacted 4 Paws for Ability. The only problem is the price tag — $13,000. So what did Evan do? He wrote a book called “My Seizure Dog,” in which he describes all the wonderful things he will be able to do with the aid of his special service dog. Evan’s book is $10, and you can purchase it online at CreateSpace.com or Amazon. You can also make a donation Evan’s fund with 4 Paws for Ability. Evan also has a website, Dog 4 Evan.  If you would like to meet Evan in person, he is having a book signing today from 1:00 to 3:00 at the Grounded Coffee Shop at 6919 Telegraph Road in Fairfax County, Virginia. What a special child! Best of luck to you, Evan! Thanks to the Washington Post for highlighting Evan’s story in this weekend’s Metro section.

UPDATE (7/25/11):  Congratulations, Evan!  The Washington Post reports that 600 people went to his booksigning at Grounded Coffee, 400 books sold (that’s $4000 right there!).  And donations are still pouring in.  The donation link to Evan’s website, www.dog4Evan.com, shows he has over $7,000 raised now!  Looks like Evan will have his seizure alert dog, and hopefully very soon!

UPDATE (7/27/11):  Evan will be getting his service dog!  He reached his goal of $13,000 — and the donations are still rolling in!  Plus, Evan’s book is #1 on Amazon for bestsellers in Children’s health books! Congratulations, Evan!

UPDATE (8/2/11):  Evan has raised over $20,000!  Not only will he get his dog, the extra funds will go to two other deserving children who need service dogs!  Check out today’s Washington Post update for more info on this fantastic story.

Making a Difference this Memorial Day with Service Dogs

Explore.org, an arm of the Annenberg Foundation, has found a fantastic way to honor our veterans. Explore.org will donate up to 100 service dogs (to the tune of up to $500,000) to veterans suffering from post-traumatic stress disorder. You can help them reach this goal by liking the “Dog Bless You” Facebook Community. Explore.org will donate one dog for every 5,000 likes. Explore.org and the Annenberg Foundation are using the “Dog Bless You” campaign to raise awareness of our vets in need, and the amazing role that service dogs can play in their recovery. You can learn more about this worthy program in this Mother Nature Network article from last Friday. At the time of this post, “Dog Bless You” had over 186,000 likes!  You have until July 4 to help Explore.org reach its goal.

Speaking of making a difference through service dogs, the Washington Post recently did an update on Andrew Stevens and his quest to have his service dog, Alaya, accompany him to school. Andrew’s parents, Angelo and Nancy Stevens, fought the Fairfax County Public School system when it denied Andrew, who suffers from a severe form of epilepsy, the right to bring Alaya to school. The school system came to a truce, and set up a trial period earlier this year. After three successful weeks, the school system finally agreed that Andrew can properly handle Alaya on his own, and are now allowing Alaya to accompany Andrew to school. Better yet, the Stevens’ hard work also convinced Virginia’s Department of Education to revise its policy to allow school kids to have service dogs, provided the student can handle the dog properly. In their ongoing quest to fight for their son and others who can benefit from service animals, Angelo and Nancy Stevens have established The Andrew Gordon Stevens Foundation. And – in keeping with the Memorial Day message – it is worth noting that Angelo Stevens serves our country as an Army sergeant!

Missing the Mark: Saginaw’s Misguided Dangerous Dog Ordinance

Officials in Saginaw, Michigan have been working on ordinances purportedly aimed at dog owner responsibility.  This could be a welcome change.  The current version of Saginaw’s “Animals, Birds and Bees” ordinance, Section 94.04, falls within Saginaw’s “public nuisance” laws, and fails to address even the most basic issues, such as a leash law.  One proposed ordinance is squarely aimed at owner responsibility, adding long overdue measures to Section 94.04.

First, Saginaw will add a leash law and prohibit tethering in most circumstances.  Owners would be required to keep dogs on leash.  Dogs could not be chained or tethered outside of the dogs’ “kennel, pen or fenced yard,” unless someone has physical control of a leash.  An inanimate object such as a tree, post or building will not cut it.  The requirement of physical control indicates that shock collars will not count in Saginaw.  This is a great step – with the caveat that the law should be clarified to state that a dog cannot be chained or tethered even if the dog is on the owner’s property.

Second, all dogs would need to be securely confined indoors or in adequately lighted and ventilated kennels.  If a dog is confined indoors, the dog would not be able to exit on the dog’s own volition.  Presumably, that means no more doggie doors in Saginaw.  And, thankfully, no more dogs left outside unattended.

Third, Saginaw residents would be limited to three dogs per household.  This three-dog limit would not apply to animal care and control organizations, rescues, registered foster homes, and certain service dog and hunting dog breeders.  Commercial breeders and brokers would be required to register with the City Clerk and obtain a business license.

Officials in Saginaw did not stop at overhauling Section 94.04.  They are proposing a second ordinance targeting “dangerous dogs.”  Unfortunately, this ordinance completely misses the mark and has virtually nothing to do with owner responsibility.

This ordinance will require the owners of “dangerous dogs” to register the dogs, and adhere to leash and confinement standards.  The owners will also have to pay a $20 registration fee and obtain and display signs indicating the presence of a dangerous dog on their property.  Failure to comply with the ordinance would result in civil fines.

The heart of problem is the proposed definition of a “dangerous dog” as any dog:

1. with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
2. that attacks, attempts to attack or that, by its actions, gives indication that it is liable to attack a human being or other domestic animal one or more times without provocation; or
3. of a breed that appears consistently in the top five (5) of the breeds on credible, analytical listings of “Most Dangerous Dogs” as verified and supplemented by local data and records for Saginaw County, including mixes.

Saginaw has inexplicably chosen to focus on breeds and dogs it believes may attack, rather than on individual dogs with demonstrably aggressive behavior.  The current list of “most dangerous dog” breeds in Saginaw include:  pit bull, Rottweiler, German Shepherd, Bull Mastiff (Presna Canario) and Alaskan Malamute.  Saginaw will purportedly look to “credible,
analytical listings” to update their list annually.  Saginaw apparently forgot to look at statistics in the UK showing the three most aggressive dog breeds as Dachshunds, Chihuahuas and Jack Russell Terriers!

The simple truth is that focusing on breed will not decrease the number of dog bites.  According to a comprehensive 2009 study by the National Canine Research Council, the three predominant factors with dog bites are whether the dog:

1. is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
2. is intact; and
3. has a reckless, irresponsible owner.

Notice that breed is not one of these factors.  With its recent overhaul of the Americans with Disabilities Act (ADA), the Department of Justice (DOJ) agrees that the focus should be on the individual dog and not breed.  The ADA already condones the refusal to provide access to a service dog if an individual dog shows specific signs of aggression.  But the DOJ unequivocally refuses to bow to jurisdictions with breed bans.  This is leading to a nasty battle in Denver, where officials are refusing to exempt service dogs in Denver’s breed ban.  At least Saginaw was not so stubborn, exempting service dogs from its dangerous dog ordinance.

Although Virginia’s dangerous dog statute isn’t perfect, it does focus on individual dogs and specific aggressive behavior.  To be classified as a dangerous dog, Virginia requires an actual bite.  Last year, the General Assembly considered expanding the dangerous dog designation to dogs who “attempt to bite.”  Fortunately this bill died quickly in committee.  Additionally, Virginia refuses to bow to breed stereotypes, with the following language right in the dangerous dog statute:

No canine or canine crossbreed shall be found to be a dangerous dog or vicious dog solely because it is a particular breed, nor is the ownership of a particular breed of canine or canine crossbreed prohibited.

With Saginaw’s proposed leash, confinement and supervision requirements and a limit on the number of dogs a household can have, Saginaw will accomplish a great deal to increase owner responsibility and decrease the number of resident dogs.  If Saginaw wants more effective laws, research shows that focus on the spay/neuter issue rather than breed will go further to reduce the number of dog bites.

Laws requiring leashes and spay/neuter programs are not the only way to get at owner responsibility.  Education is also necessary.  The more we learn about animal behavior, the better.  At last Friday’s Mid-Atlantic Animal Law Symposium in Baltimore, Maryland, one participate raised the issue of humane education in schools.  If we could emphasize just three areas, we could do a great deal to better the bond between dogs and owners, and thereby decrease the number of dog bites:

1. Learn how to read dogs’ body language.  The ASPCA’s website page on canine body language has a quick reference guide for starters.
2. Never leave dogs unsupervised with children.  So many dog bites are to children.  Simple supervision, teaching a child not to approach a dog unless the child asks the owner for permission, and showing the child how to pet the dog appropriate would go far to decrease the number of dog bites.  Dogs & Storks has wonderful information about how to prepare the family dog for a new baby, and lots of other helpful information regarding dogs and children.
3. Socialize, socialize, socialize.  Dr. Ian Dunbar has championed the importance of puppy socialization, and how socialization allows a puppy to become a well-adjusted adult dog.  Here’s a great video with Dr. Dunbar on the topic of dog bites and the tie to fear and lack of socialization.

The Saginaw City Council will introduce its proposed ordinances on April 18, and the ordinances are slated to be enacted May 9 and become effective May 19.  If Saginaw’s real purpose is to increase owner responsibility and decrease the number of dog bites, I encourage the Council to adopt the ordinance expanding Section 94.04, but ditch its dangerous dog ordinance.

Happy New Year! Looking Back at 10 Posts from 2010

As we ring in 2011, here’s a quick recap of 10 facts and lessons from last year’s posts:

1. Although federal law only requires labeling of fur garments, Virginia law actually prohibits garments made of dog or cat fur.
2. The ADA definition of “service animal” is changing to limit service animals to basically only dogs.
3. The videos involved in the US v. Stevens First Amendment case involved depictions of dog fighting, not animal crush videos.
4. The American Veterinary Medical Association just changed the veterinarian’s oath to include animal welfare and the prevention of animal suffering.
5. The Lynchburg Fire Department honored a search and rescue dog it recently lost by distributing pet oxygen masks on rescue vehicles.
6. An appellate court in Wales just upheld legislation banning shock collars.
7. Suffolk County, New York was the first jurisdiction to establish a public Animal Abuser Registry.
8. Many home owner insurance carriers charge higher premiums or even exclude coverage for animal liability if the household contains a dog such as a pit bull, Rottweiler, German Shepherd, Husky, Chow or Akita.
9. Many Northern Virginia jurisdictions limit each household to three dogs, and require a kennel license for more than three dogs.
10. A California Court of Appeals decision determined that the “exigent circumstances” exception the warrant requirement can include protection of the life of an animal.

May 2011 be peaceful, positive and prosperous for you and your loved ones!

Read The Fine Print! Homeowners Insurance And Dog Bite Liability Coverage

Recent findings on dog bite liability by the Insurance Information Institute are likely to stir up debate.  If you own a dog and haven’t looked at your homeowner’s or renter’s insurance policy recently, you may want to get it out now and take a look at the fine print. 

The Institute says that most homeowner insurance policies provide $100,000 to $300,000 in coverage, and typically include dog bite liability.  The Institute quoted the Centers for Disease Control and Prevention for statistics showing that dogs bite more than 4.7 million people per year, causing 800,000 people to seek medical assistance.  386,000 require treatment in an emergency department, and approximately 16 die.  Because more than half of dog bites occur on the owner’s property, and more than one third of all homeowner liability claims are dog bite claims, insurers have started taking notice.

Dog bite liability generally arises in three ways.  First, a state may have a dog bite statute making the owner automatically liable for any unprovoked injury or property damage caused by a pet dog.  The District of Columbia has such a “strict liability” statute for the first bite.  Second, an owner may be liable for injury caused by his or her dog only if the owner knew the dog had a propensity to bite.  This is commonly called the “one free bite” rule, and is followed in Maryland and Virginia.  [For a very comprehensive analysis of dog bite liability and a breakdown of which states have dog bite statutes and which states follow the “one free bite” rule, take a look at Kenneth Phillips’ Dog Bite Law site.]  Third, the owner may be liable for negligence for injury caused by the owner’s having been unreasonably careless in handling the dog.

According to the Institute, most insurers provide coverage to households with dogs.  However, some insurers have started to require liability waivers for dog bites.  Other insurers charge extra for or exclude certain “biting breeds” (a term used by the Institute in this recent article) such as Rottweilers and pit bulls.  [For a list of other breeds commonly targeted by insurers, see the post Dog Breeds Can Affect Home Insurance Rates on e-wisdom.com.]  Some insurers will provide coverage if the owner takes behavior modification classes or “if the dog is restrained with a muzzle, chain or cage,” according to the Institute.  Still others are refusing to insure dog owners at all.

As justification for the insurers’ actions, the Institute cites data that shows an increase in 2009 in the number, value and average cost of dog bite claims.  From 2008 to 2009, the number of claims have risen 4.8%, from 15,823 to 16,586.  In that same time frame, the value of claims has risen 6.4%, from $387 million to $412 million.  The average cost of dog bite claims has risen 1.5%, from $24,461 in 2008 to $24,840 in 2009.

Probably the most contentious statement by the Institute is this: 

Insurers generally oppose legislation that would require changes to their dog breed practices.  They contend that government public health studies and the industry’s claims histories show that some breeds are more dangerous than others and are higher loss risks. 

This statement is in direct contrast to the approach taken by the Department of Justice, which has recently modified its definition of the term “service animal” in the Americans with Disabilities Act.  The DOJ refused to cave to local efforts in banning particular breeds, maintaining its position that a service dog may be of any breed, and can be excluded from access based solely on that particular dog’s actual and individual behavior and history.  [For more about the new definition of “service animal,” refer to my post, Watch for these Changes to the ADA Definition of Service Animal.]  Notably, at least two states – Pennsylvania and Michigan – forbid breed discrimination, with laws prohibiting insurers from cancelling or denying coverage to owners of particular dog breeds.

The Institute also said:  “It is unlikely that insurers will begin offering specialty insurance just for dog bites since the cost of such polices would be prohibitive.”  I find this very disconcerting in the face of laws such as Virginia’s dangerous dog statute, enacted in 2008.  Virginia’s dangerous dog statute requires the owner of a dog declared by a court to be “dangerous” to carry maintain a surety bond or have an insurance policy of at least $100,000.  Even more frustrating is the fact that Virginia’s dangerous dog statute has no requirement that a dog bite to a person be of any certain level of severity.  I fear that the requirement of a $100,000 bond or policy will prove to be so onerous that some owners of dangerous dogs – even ones who inflicted very minor injuries to a person – may feel they have no choice but to turn to euthanasia because they cannot afford the cost of complying with the statute.

Watch For These Changes To The ADA Definition Of “Service Animal”

In July 2010, the DOJ issued final regulations revising the Americans with Disabilities Act (ADA), including the definition of a “service animal.”  DOJ published the new regulations in the Federal Register on September 15, 2010, with the final rules taking effect March 15, 2011.   28 C.F.R. Part 35 (Title II) applies to state and local government entities, and 28 C.F.R. Part 36 (Title III) (applies to public accommodations and commercial facilities. 

The final rule limits “service animals” to dogs, disqualifying other species and rejecting requests to include “common domestic animals” or primates.  Nonetheless, the rule contains an interesting discussion about animals such as capuchin monkeys trained to assist paraplegics and quadriplegics, and how reasonable accommodations for these animals under the Fair Housing Act is appropriate.

DOJ’s final rule defines “service animal” as “any dog that is 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 the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler’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.”

The Rule changed the phrase “providing minimal protection” to “providing non-violent protection.”  This change was meant to include seizure alert dogs, while specifically excluding attack dogs and dogs kept solely as a crime-deterrent effect.  Similarly, the Rule changed the language “alerting to intruders” to “alerting to the presence of people or sounds,” in order to include dogs trained to alert a person who is deaf or hard of hearing to a doorbell ring, but exclude watch or attack dogs.

There was much discussion about the phrases “doing work” or “performing tasks,” with particular concern about whether a dog assisting a person with a psychiatric disorder would qualify.  The Rule refused to change these phrases, noting that a dog assisting a person with a psychiatric disorder easily qualifies as “doing work” and “performing tasks” based on its training in recognition (e.g., awareness of an imminent psychiatric episode) and response (e.g., nudging, barking or moving the person to a safe location).

As noted above, the Rule recognizes the role of psychiatric service animals, but not “emotional support animals.”  Once again, the Rule noted that the appropriateness of an emotional support animal under the Fair Housing Act and the Air Carrier Access Act, but refused to include emotional support animals under the wider umbrella of public settings that are covered by the ADA.  On this note, the Rule specifically retained the term “service animal,” refusing to accept other terms such as “assistance animal” or “support animal.” Although the Rule refused to create a carve out for military personnel, the Rule did note its support of state or other laws that would allow emotional support animals for current and former members of the military. 

Most notably, the Rule refused to set size, weight or breed limitations.  The Rule made it abundantly clear that the ADA would not bow to state or local breed restrictions, primarily because the ADA already allows exclusion of an animal based on the specific animal’s actual behavior or history.  For an insightful discussion about the Rule and breed restrictions, don’t miss Bob Barr’s The Barr Code post, Federal Law Leashes Pit Bull Restrictions, in the Atlanta Journal Constitution.

You may also consult DOJ’s ADA fact sheet on the final regulations to Title II and the fact sheet for Title III, and take a look at this post on Service Dog Central and the related links.

On a very interesting sidenote, the Washington Post recently took a look at a study by the Equal Rights Center showing that half of DC cabs will drive right by a blind person with a service dog.  So how do you enforce the requirement that cabs make reasonable accommodations in that situation?