An American flag flies over Ground Zero today. People in New York and all over the world observe a moment of silence at the exact times that the planes struck each of the Towers, the Pentagon, and the ground in Pennsylvania. The flag reminds us to never forget those who perished on what may be the darkest day of our history.
All was not dark that day. Incredible acts of heroism took place ten years ago — not the least of which were the passengers on the plane in Pennsylvania who sacrificed their lives so that another attack would not occur in Washington, DC.
There were plenty of canine heroes working beside the human heroes that day. The Daily Mail Online has a beautiful tribute to the few surviving search and rescue dogs from 9/11, with photos of the dogs then and now. Ten years ago, these dogs were adolescent search and rescue dogs who worked around the clock with their handlers to search for survivors among the rubble at Ground Zero. Today, these dogs are beautiful mature seniors who are still faithful companions.
And speaking of the most faithful companion of all, the Scoop has the tale of Omar Rivera, a blind computer technician who was on the 71st floor of one of the towers ten years ago. Knowing he would not make it to the bottom in time, Rivera selflessly unleashed his service dog, Dorado, to at least give Dorado the chance to escape and survive. The pressing crowd came between Dorado and Rivera, but Dorado fought his way back to his handler, and actually led him to safety down 71 flights of steps before the tower collapsed.
May we all stay safe today and every day. And may we always remember those who we lost ten years ago, and those — human and canine — whose acts of bravery will always shine through the darkness of that day.
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!
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.
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 (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.
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.
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:
with a propensity, tendency, or disposition to attack, to cause injury or to otherwise endanger the safety of” people or companion animals; or
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
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.
is a resident dog (kept primarily outdoors, used for guarding, protection, fighting or breeding, rather than a pet/family dog);
is intact; and
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.
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:
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.
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.
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.
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.
As we saw in How Much Is Fido Really Worth Part 2, damages – based on the “value” – of your pet dog could cap out at around $200, unless your dog happens to be an expensive pure breed or has extensive training like a seeing eye dog. But could this always be the case? What if someone killed your dog?
As the law stands now in Virginia, the question of whether you can recover damages for a pet initially turns on whether the act was intentional or due to negligence. If someone negligently injures or kills a pet, the owner cannot recover damages for emotional distress. This very scenario came up in 2006 in the Virginia Supreme Court case, Kondaurov v. Kerdasha. Ms. Kerdasha was driving on Route 110 in Arlington County when her jeep was struck in an accident caused by a tour bus being driven by Mr. Kondaurov. Fortunately, Kerdasha did not suffer major injuries, but she was horrified to learn that her dog, Sushi, to whom she was very attached, had been ejected from the jeep during the accident. Sushi ran down Route 110 into a neighboring residential area, where she was finally found, with an injured tail that needed to be partly amputated.
Kerdasha sued Kondaurov for negligence, claiming damages in part based on injuries caused to Sushi. Kondaurov agreed that he was negligent, but fought Kerdasha on damages. A jury awarded Kerdasha $300,000 in damages, and Kondaurov appealed, claiming that Kerdasha was not legally entitled to that amount. When addressing the damages related to Sushi, the Virginia Supreme Court acknowledged Kerdasha’s strong bond to Sushi, and the fact that people often form bonds with their pets akin to a parent-child relationship. But the Court stood by the fact that Virginia – just like the majority of states – still considers pets to be personal property. Because Virginia law has never allowed recovery for emotional distress resulting from negligently inflicting injury to personal property, the Court refused to award damages based on Sushi’s injuries. In support of its position, the Court included a footnote with a string cite of cases from a number of states that likewise refuse to allow damages for emotional distress for injury or death caused by ordinary negligence.
But that same footnote in the Kondaurov opinion left open a window for intentional acts. In that footnote, the Court cited cases from Florida, Idaho, Kentucky and Louisiana allowing recovery of damages for emotional distress for pets injured or killed by willful, intentional or outrageous torts. So if a Virginia court was confronted with a person who intentionally killed a pet, would the court allow recovery of damages? We came close to finding this out in yet another Arlington County case involving Buster, a twelve-pound Chihuahua.
Jeff Nanni and Maurice Smith lived together for years with six well-loved dogs, one of whom was Buster. On one unfortunate day in 2007, Nanni and Smith got into a fight, and Nanni took Buster into his arms. Smith hit Nanni and Buster repeatedly with a wooden board. Nanni rushed Buster to the vet, but Buster died of his injuries on the way to the animal hospital. An autopsy revealed that Buster died of blunt force trauma to the head. Smith was arrested for assault and battery and animal cruelty. He later pled guilty and received ten days in jail and one year of unsupervised probation.
After the criminal case, Nanni sued Smith civilly for severe emotional distress based on that incident when Smith beat him and Buster. Nanni sought at least $15,000 in damages for Buster’s worth to Nanni – not just based on the traditional “replacement value,” but based on Buster’s “unique value” as a companion animal. Unfortunately, the case never progressed to the point of getting an answer about whether Nanni could recover for Smith’s intentional beating and killing of Buster. Before the case could be tried, Smith filed for bankruptcy, and the parties ended up resolving their differences in bankruptcy court.
As attractive as it may seem to create law in Virginia allowing for damages if a person intentionally harms or kills a pet, it may also end up being a case of “be careful what you ask for.” If the law allowed tort and punitive damages for a pet, veterinary malpractice insurance carriers would undoubtedly respond by hiking up premiums, and the hospitals and vets would respond by hiking the cost of services. Would the change in the law be worth that risk?
As we saw in Part 1, pets are personal property in the eyes of the law. But what does that mean about the true value of a pet? For starters, let’s go back to Virginia Code Section 3.2-6585, which says that “all dogs and cats” are “deemed personal property.” This code section goes on to say that dogs and cats may be the subject of larceny and malicious or unlawful trespass. Section 3.2-6585 also grants an “owner” the right to sue if their cat or dog is killed, injured, unlawfully detained or unlawfully used, and the right to recover damages in the amount of the “value thereof or the damage done thereto.” [For more on “owners,” see my post, “So What Are My Responsibilities as a Pet Owner?”]
So what in the world does “value thereof or the damage done thereto” mean? Often courts consider this to be the pet’s “replacement value,” which could fall right around $200. There is some support for this figure when you look at Virginia’s larceny laws.
In Virginia, the line between petit larceny (a misdemeanor) and grand larceny (a felony) is only $200. Virginia Code Section 18.2-97 (yes, in the Crimes against Property Chapter) makes it a felony to steal a dog, horse, pony, mule, cow, steer, bull or calf. Larceny of poultry, swine, sheep, lamb and goats could also result in a felony. Conspicuously missing from the list are cats. This could be why Section 3.2-6585 says dogs and cats “may” be the subject of larceny. Even if stealing a cat didn’t result in grand larceny, there is no reason it would not constitute petit larceny. And although stealing a dog is a felony, the crime carries a maximum of 10 years in prison — compared with the maximum of 20 years when someone steals $201 of clothing or jewelry from a store.
Yet another statute that throws around the $200 figure is Section 18.2-102, dealing with the unauthorized use of animals, aircrafts, vehicles or boats. Unauthorized use results in a felony if the value of animal, aircraft, vehicle or boat is $200 or over, and a misdemeanor if the value is under $200.
Section 18.2-97.1 makes it a misdemeanor to remove a dog’s electronic or radio transmitting collar in order to prevent finding the dog. Although it is unclear, I would hope this includes removing a microchip. This section also talks about “value,” giving a court explicit authority to order restitution of the “actual value of any dog lost or killed as a result of such removal” and “for any lost breeding revenues.”
For those of you in Prince William County, Prince William County Code Section 4-22 gives you the right to sue if your dog is injured or killed on your property by another dog that did not have permission to be there. Damages would be – you guessed it – the “value thereof or the damage done thereto.”
Can the “value thereof or the damage done thereto” really max out at about $200? If your dog is not a particular breed or does not have particular training, this certainly could be the case. However, a property owner has always been able to testify about the value of his or her property, and this should not be any different for dogs. A person with an expensive pure breed or a dog with extensive training, such as a service dog or protection dog, should be allowed to establish the value of their dog by showing how much they paid for the dog and the dog’s “replacement value,” including any unique characteristics or training.
Even if you own a mutt and are limited to something like $200 for actual damages, what if someone intentionally killed your pet? Could you sue for emotional distress or punitive damages? If you’re interested in these questions, stay posted for Part 3.
As a final note, what about the line between grand larceny and petit larceny? The $200 mark is not just for animals. It is the same for any stolen item – money, jewelry, a car or a boat. It has been so since 1980. Is it time for that to change? If you want more info about this threshold, take a look at this 2008 Power Point presentation by the Virginia State Crime Commission.