Is the Bed of a Pickup as Private as the Inside of a Car? Probably, but the Barrier is Imaginary and More Easily Crossed

During a traffic stop in Marysville, California, on May 14, 2009, a Marysville Police Department reserve officer, Matthew Minton, pulled over a pickup because the license plate was obscured by the rear bumper and the license plate lamp was not functioning. The officer saw that the driver, Robin Briggs, had glassy eyes and might be intoxicated. Returning to his patrol car, the officer radioed for assistance from Officer Christopher Miller who “was more familiar with driving under the influence investigations and worked with a narcotics detection dog.” Miller arrived with his dog about two minutes into the initial stop.



Briggs stepped out of the vehicle and was shown the problem with the truck’s license plate. Officer Minton looked at Briggs’s pupils and asked him if he was under the influence of narcotics. Briggs said he had taken methadone earlier. Presumably this was a legal prescription, which meant that Briggs would have received a warning not to drive for a time. Briggs refused Minton’s request to search the truck. Minton asked Miller to have the dog, Tommy, check the exterior of the pickup.



Tommy



Tommy was a dual purpose dog that protected his handler and detected narcotics, specifically cocaine base, cocaine powder, methamphetamine, marijuana, and heroin. Detection of these odors is required by the California State Commission on Peace Officer Standards and Training (POST). Tommy was tested annually for these odors in both vehicles and buildings and had been certified every time he had been tested. The court separately described Officer Miller’s training:



“Officer Miller is ‘trained to read [Tommy], watch his behavior, how he reacts....’ When Tommy is sniffing the air around a vehicle, Officer Miller watches for any change in Tommy's behavior, such as a deviation from his standard high/low search pattern or the use of a ‘cone pattern’ to work back to the source of the odor. Officer Miller's ability to read Tommy's behavior changes comes with hours of training. When Tommy locates the source of an odor, his ‘passive alert’ is to sit and stare at the location where he found the controlled substance. This indicates to Officer Miller that Tommy smells the odor of one of the narcotics Tommy has been trained to detect.”



Sniff and Searches



At the traffic stop, Miller had the dog begin the sniff at the front of the vehicle and moved to the back. Tommy followed Miller but was not on a lead. The court describes what happened next:



“At the rear tire on the driver's side, Officer Miller noticed a change in Tommy's behavior. First, Tommy ‘snapp[ed]’ back from circling around the truck and redirected his search by doubling back. Officer Miller kept walking around the truck, because he did not want to influence Tommy's decision to redirect the search. Tommy next used a ‘scent cone’ search pattern, working right to left in an attempt to find the odor. Tommy then stood up on his hind legs with his front paws on the side of the truck and sniffed over the bed of the pickup. After sniffing the air in that area, Tommy immediately dropped down into his ‘sit/stare’ alert. Tommy alerted to a black backpack in the bed of the truck. The backpack was the only item in the bed of the truck in that area and was the first thing Officer Miller saw when he went to take a look in the bed after Tommy alerted.”



The description indicates that Miller was an experienced handler using good practices.



Following Tommy’s alert, Miler opened the backpack and found chemical bottles and a bottle with white pills. The chemicals were identified as xylene, denatured alcohol, and acetone. Miller and Minton believed the pills might be ephedrine. Miller went no further:



“After seeing these items, Officer Miller stopped looking through the backpack and did not ‘go hands on’ with the evidence, pursuant to policy. Consequently, Officer Miller could not be certain if the backpack contained any of the narcotics Tommy was trained to detect, and he did not determine if the backpack did contain any of those items at a later date.”



The policy also indicates good practices on the part of the police department.



Officer Minton placed the occupants of the truck under arrest. Officer Joshua Jellsey of the Yuba-Sutter Narcotics Enforcement Team arrived and recognized the items in the backpack as commonly used in making methamphetamine. Jellsey obtained a search warrant for the residence of Briggs and Stillwell, the driver and passenger respectively. Additional ingredients and utensils were found in the house, some of which showed the presence of ephedrine and pseudoephedrine. An additional search of the pickup revealed a pink-stained coffee filter and syringes.



The trial court found the initial traffic stop was justified and that the detention was not prolonged because the dog alerted to the backpack within ten minutes of the initial stop. The trial court was, however, “somewhat troubled by the dog alerting on an item or items which don’t fall within the four categories that the dog is trained to alert on.” The court found that the alert produced probable cause and did not find it “illegal or unconstitutional because the dog’s nose happened to extend into the bed once the dog alerted.”



Reliability



The defendants appealed, contending that the prosecution had not established Tommy’s reliability, noting that no cocaine, methamphetamine, marijuana, or heroin was found as a result of Tommy’s alert. They also argued that Tommy invaded the vehicle by putting his front paws on the truck and sniffing above and inside the truck bed, thereby turning the sniff into a search that violated the Fourth Amendment.



Following Illinois v. Caballes, 543 U.S. 405 (2005) and the California State Supreme Court case of People v. Mayberry, 31 Cal.3d 335, 182 Cal.Rptr. 617, 644 P.2d 810 (1982), the appellate court held that “it is clear that a well-trained detection dog’s sniff of the exterior of a pickup truck does not amount to a Fourth Amendment search. The court concluded that substantial evidence at the trial court’s suppression hearing had supported a finding that “Tommy was well-trained and, thus, reliable.” Tommy had been certified annually and was up to date on his certifications. Miller, the handler, was also trained and certified.



As to the argument that Tommy was not reliable because none of the drugs he was trained to recognize were found in this case, the court stated:



“Officer Miller never received any lab results as to the contents of the backpack, and there was no evidence at the hearing as to the complete contents of the backpack. While it is thus true “[t]here was no evidence that the backpack contained contraband,” that does not mean the backpack did not contain contraband. Therefore, no determination can be made as to Tommy's reliability based on his alert in this case…. Defendants offer no California authority for the proposition that evidence of a single error by an otherwise well-trained detection dog makes that dog unreliable.”



Training and Certification



The defendants cited a Florida case, Florida v. Matheson, 870 So.2d 8 (Ct. App. 2003), which held that training and certification, standing alone, could not provide probable cause, but at most “mere suspicion.” The California appellate court noted, however, that California cases “have not required evidence of a dog’s success rate to establish probable cause.” (Matheson was discussed by us in a prior blog). The court cited another California appellate decision, People v. Bautista, 115 Cal.App.4th 229, 8 Cal.Rptr.3d 862 (Ct. App. 2004), where a handler’s knowledge of a pair of detection dogs’ training and experience, and observation of the dogs’ trained behavior, gave probable cause for the issuance of a warrant. Therefore:



“Here, as in Bautista, Officer Miller was aware of Tommy’s training and certification and he observed Tommy change his behavior and alert in a manner consistent with his training. Nothing more was required.” A few paragraphs later, the court adds: “California authority does not support the notion that more than an alert from a trained narcotics detection dog is needed to establish probable cause for a search.”



Scope of the Sniff



The defendants also argued that Tommy exceeded the allowable scope of the sniff when he placed his front paws on the pickup truck and sniffed over and inside the bed of the truck. This led to an analysis of those cases in which dogs have jumped into windows and through open doors. The court stated:



“Tommy's action of standing up on his hind legs and putting his front paws on the side of the truck is almost identical to the behavior the Eighth Circuit found constitutional in Olivera–Mendez [U.S. v. Olivera-Mendez, 484 F.3d 505 (8th Cir. 2007)] …. If the officer's actions in that case did not amount to an infringement of constitutional rights, then certainly neither did Tommy's when he stuck his nose past the imaginary 'plane' at the top of the truck bed to sniff the backpack. More importantly, the instinctive action of a dog jumping into an open part of a car it is sniffing (assuming that the police officer did not request that the owner of the vehicle open a door for this purpose) does not violate the Fourth Amendment…. Here then, Tommy's instinctive actions of following the odor from the ground up to the source (even though these actions may have caused him to sniff in the bed of the truck) did not violate the Fourth Amendment.”



The defects in labeling as instinctual a dog’s behavior in jumping into a vehicle was discussed by us in the earlier blog on jumping into windows.



Plain-Sniff Doctrine



Although not referred to by the court, the canine team’s actions could be further justified by the plain-sniff doctrine. In Hutchinson v. U.S., 471 F.Supp.2d 497 (M.D. Pa. 2007), an officer had already seen what he believed to be marijuana in a car when the drug dog jumped through an open window and alerted to a backpack in the back seat. The federal district court said that the “plain sniff rule would apply because the dog was not aided in its sniff by an intervening officer and the dog detected the odor in an area in which it was lawfully present.” The federal district court cited cases finding the plain sniff doctrine a logical extension of the plain view doctrine. If the plain sniff (sometimes plain smell) doctrine applies to a dog jumping through a car window when unaided by an officer, it easily applies to the open bed of a pickup truck around which the dog is being led.



This is not to say that a court could not accept a cueing argument in such a circumstance. If the dog’s nose crossed the “imaginary 'plane' at the top of the truck bed” at the behest of the handler, and evidence of this could be provided, the defense might be able to say that crossing the plane was not the “instinctive” action the court here assumed it was. Just as we noted with regard to training windows in our discussion of the District of Maryland case of Batista, police dog training involves dogs’ learning to jump onto platforms. Prosecutors and police should be aware that the increased use of cueing arguments is going to mean that defense counsel are going to be pursuing such possibilities in discovery and cross-examination.



Conclusion



The court’s analogizing the entry of a police dog into the bed of a pickup to jumping through a window is probably sound, though the bed of the pickup will generally be more accessible than the inside of a vehicle so that the dog’s following of the scent would be more difficult to stop. Some courts might say that sniffing in the bed was part of the sniff of the exterior of the vehicle and that as long as the alert was not cued, even a jump into the bed of the vehicle is not constitutionally prohibited. The situation is close to a “plain sniff” situation, the canine analog to “plain sight,” where the dog can be expected to alert to what is before its nose, there being no physical barrier—even a potential barrier beyond the height of the pickup bed—to stop the dog.



The difference between the California and Florida courts on the necessity for the production of training and field records may be ripening into an issue appropriate for guidance from the U.S. Supreme Court.



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



People v. Stillwell, 2011 WL 3035109, 11 Cal. Daily Op. Serv. 9315 (Cal. App. 2011); for a recent Florida case rejecting canine evidence based partly on field records, see Wiggs v. Florida, 2011 WL 3300139 (Ct. App. 2011).

Read More

The Hunting Hounds of Queen Elizabeth I

In 1576, George Turbervile published the Booke of Hunting, being in large part a translation of the work of Jaques du Fouilloux, La Venerie, published in 1562. Turbervile was a poet and fellow of New College, Oxford, where he studied law. He traveled widely, going to Moscow to the court of Ivan the Terrible in 1568.

In translating du Fouilloux, Turbervile copied most of the woodcuts from the Frenchman’s book, though minor changes can be detected even in those plates copied closely. One significant difference between the two authors, which can be seen in the subjects of their respective graphics, was that du Fouilloux published during the reign of Charles IX, though he was perhaps writing during the reign of Henry II (died 1559) and the short reign of Francis II (1559-60), while Turbervile published when Queen Elizabeth was 43 years old.

Turbervile often refers to the presence of the Prince or chiefe, whose position in the hunt involves receiving certain honors and explanations from the huntsman, but the woodcut plates show this position filled by a young woman, and a plate titled, “The report of a Huntesman upon the fight of an Hart,” is followed by a poem beginning, “Before the Queene, I come report to make….”

It might seem that a great deal of animal cruelty was involved in the hunt, but if I had to choose I’d rather have been a deer in Queen Elizabeth’s forests than a calf in a modern feedlot. In a very significant way, however, one’s modern sensibilities must be suspended. Presenting deer turds on leaves to a queen is not something that we now could imagine as anything but an offense, but the responsibility of doing so was a great honor to the huntsman of five hundred years ago, and would have been well appreciated by the monarch.

Kennels

Fouilloux depicts a kennel that is similar to that described nearly two centuries earlier by Phoebus, with two stories and a large yard. This is shown in the second plate. A fountain is near the kennel, from which a spout fills a trough, which in turns empties into a stream. A feeding trough stands in the middle of the yard. A dog uses a post covered with rope and perhaps canvas to scratch, and it appears to invite the dog to urinate. The kennel is described as follows by Turbervile (using the original spelling, though not the long "s", sometimes called the German s):

“A kennel ought to be placed in some orientall [eastern] parte of a house, where there may be a large courte wel playned, being fourscore paces square … but the greater and larger that it is, the better it will be for the Houndes, because they shall have the greater pleasure to play themselves, and to skimmer, through the middest of it, were meete and good to have a little chanell of good fountayne water, neare unto the which you shall lay a great trought of stone to receyve the course of the sayde water, the whiche trough shalbe a foote and a halfe high, to the end the houndes may drinke therat the more easily, and that trought muste be pearced at the one ende, to let out the water, and to make it cleane when you would. In the highest place of the Courte it shalbe good to buylde the kennel or lodging for the Houndes, in the whiche you must have two chambers, whereof the one shalbe larger than the other, and the same should be a chimney, great and large, to make a fire when neede shall require. The gates and windows of the chamber, must be set and situate agaynst the rising of the Sunne and the South: the chamber should be raysed three foote higher than the levell of the ground, and in the floore you shoulde make two gutters and holes to the ende the filthinesse and uryne of the Houndes may thereby avoyde, the walles ought to be well whited, and the plankes well mortified and ioyned, and so shall spyders, flease, punayses and such like, the lesse breede and remaine therein. You must always leave them some little dore or wicket to go out into the courte when they would skimmer or ease themselves, then must you have in the chamber little bedsteads which shalbe raysed a good foote from the ground, and therwithal let every bedstead have under it a roller to remove it where you will when you would make the place cleane: and againe that when they come from the chace, and that it were needefull to warme them, you may rolle them as neare ye fire as you will; also those bedsteads must be covered wt hurdels or plankes pearced, to the end yt when the hounds do pisse, the urine may drayne to the ground.”

Certain substances were not to be used in drinking and feeding vessels:

“You must take heede that you give them no drinke in a vessell of copper or brasse, for those two kindes of metals are venomous of their nature, and cause the water which commeth in them to turne and to stinke, which woulde greatly anoy the houndes.”

Bread, a principal portion of the dogs’ diet was to be broken so that the dogs can eat, even “of evill appetite.” As noted in the picture, Turbervile also recommended that the feeding baskets “should not be emptie at any time.”

Although English kennels may have been as elaborate, the first plate in Turbervile’s book may show a typical country kennel of the sort he was more accustomed to see. The kennel is only one floor, with a row of doors that may indicate separated spaces for the dogs, or may merely suggest that the structure was easily aerated by having multiple openings in the warmer months, while the dogs would be housed somewhere else, perhaps with families, in the winter.

Care of Puppies

Fouilloux and Turbervile describe caring for mothers and their puppies. When dogs are born in winter, particular care is required, which involves keeping the puppies in a barrel:

"Fyrst if they be whelped in Wynter, you shall take a Barrell or a Pype well dryed, and kocke out the heade at the one ende thereof, afterwardes put strawe therein, and set it by a place where there is ordinarily a good fyre, then turne the open ende towardes the fyre, to the ende the whelpes may have the ayre thereof, and you shall feede the damme with good pottage or broth made with Beefe or Mutton... and when you perceive that they beginne to goe, you shall have a net made of strong thread, laced with a thong, and fastned about the Tun or Pype... so that you may kepe them from going out, and that other dogs do not byte them, or that they be troden upon or marred with mens feete."

Apparently the original crate was a barrel with netting over the open end. In depicting this care, Fouilloux places the barrel outside, as does Turbervile in copying him, where no fire is present. Various potions for bathing and anointing the puppies are described, often including spices and nuts.

Training

Hounds were coupled in training, and it was seen as best to couple “yong houndes” with “olde bitches, to teache them to followe.”

The dogs were to be taken through “greene Corne fields and through the medowes,” where they were to learn the huntsman’s voice, and to accustom them to sheep and other domestic animals. If “any dogge that is so il taught as he would runne at a sheepe or any such tame beast, you must couple him with a ramme or a stoute Sheep, and with your wande you muste all to pay him and beate him a good while, crying and threatening to the ende that another time he may know the rate of suche as use it.”

Thus, beating was part of training. The use of a bracing was, however, apparently designed to let the older dog keep the younger one out of trouble. To get rid of “lice fleas, and other vermine and filthie things, and for remedie thereof you must washe them once a weeke in a bath made of hearbes.” Something of a recipe for the bath water is then provided, which includes marjoram, sage, rosemary, and salt.

Dogs were to be trained to swim, since in the hunt they would have to cross rivers and pools. They were often taught to hunt the hare before beginning on deer. Hunting deer began at 17 or 18 months.

The Huntsman’s Skill

The huntsman, in addition to knowing the use of the hounds, had to become familiar with the animals hunted, which involved the ability to read their tracks. An interesting graphic in Fouilloux, picked up by Turbervile, shows the huntsman looking at two tracks but imagining the leg of the hart he will be pursuing. The huntsman also had to know the droppings of the deer, and to be able to tell the size of the animal, when the droppings had been left, what they said about the size of the deer and the direction in which it was moving. There was a specific term for the droppings of deer-like animals, variously spelled, but the Oxford English Dictionary prefers fumet or fumishing, attributing the earliest usage to the papers of Henry VIII, “the scent and femyseshyng of such deir.” Turbervile generally spells the word fewmet. A sampling of such wisdom will no doubt be sufficient:

“You muste understand that there is difference betweene the fewmet of the morning and that of the evenyng, bycause the fewmishings which an Harte maketh when he goeth to relief at night, are better disgested and moyster, than those which he maketh in the morning, bycause the Harte hath taken his rest all the day, and hath had time and ease to make perfect disgestion and fewmet, whereas contrarily it is seene in the fewmishyng which is made in the morning, bycause of the exercise without rest whiche he made in the night to go seeke his feede.”

Both Fouilloux and Turbervile provide sketches of fewmets, the better to educate a junior huntsman, who may one day have to present them to the Prince or chiefe (Fouilloux speaks of the king or lord: "presente ont leurs fumées au Roy, ou au Seigneur a qui ilz seront, les une après les autres, en racómptant chaseun de ce qu’il aura veu”). Turbervile copies Fouilloux's drawing almost exactly, but curiously arranges the turds top to bottom unlike Fouilloux's left to right presentation. (No doubt this reflects a fissure in the Jungian archetype of bathroom practices between the English and the French. Because the French helped us Americans obtain our freedom from the English, I have preferred the Frenchman's presentation. It also looked better in the layout. Besides, how often do you get a highbrow reason to show shit?)

The Formalities of the Chase

A large company would go on a hunt with a monarch or lord, with varying ranks reflected in the clothing of those allowed or required to attend. There were generally around ten stages to a chase, labeled as follows:

1. Unharbouring of the Game. This involved starting the deer running, generally begun by the huntsman sending out a “harbourer” to mark the locations where the deer and returning with some fewmets.
2. The Gathering. The harbourer returned to the waiting party and made his report. This was often done during a meal, and the harbourer would present the fewmets to the lord of the hunt or the most honored individual present. The hunters and the dogs gather in a field
3. Posting Relays. The pack did not all run together, but were stationed in small groups along the route the deer was expected to take. In a large hunt, such as a queen would go on, there would be six to 12 hounds at each relay, with at least three relays along the route.
4. Departure and Laying on the Pack. At this stage the company mounted horses. A scenting hound would be tethered to a tree where he could be brought should the pack go off the scent. Writers of the time disagree as to whether older or younger hounds should be released first, or whether there should be older dogs among the younger to keep them from going in wrong directions.
5. The Change. Pursuing the scent of a different animal than the one being sought was called a Change. It was believed that an intelligent deer could retrace his steps to throw the dogs off the scent and could perhaps cross the path of another deer which the hounds would then follow.
6. The Recheat. This was the procedure, sometimes conducted by taking the dogs on ever-widening circles, to get the hounds back on the correct scent.
7. The Game Exhausted. Various changes in the track and appearance of the game would indicate it had become exhausted, with its toes coming closer together, running into open spaces, and the hair bristling.
8. The Bay. The animal would stop running, but was still dangerous and could kill dogs coming near it or even attack a horse. The dogs should surround the stag and bay.
9. The Death. The huntsman finished the animal by piercing its neck with a knife or sword. The bowmen may have already shot arrows into the animal, but these generally would not kill it.
10. The Quarry. The hunting books describe the breaking of the deer. The forefoot of the game was presented to the most eminent person present.

Turbervile refers to the fewmets in the second stage as involving the droppings being presented on leaves. The harbourer or huntsman kneels in making the presentation, and likely explains as much as can be said regarding the animal that made them, an ability that would be tested when the animal was ultimately captured. Turbervile summarizes the presentation to the queen in a poem:

“Before the Queene, I come report to make
Then husht and peace, for noble Trystrams sake,
From out my horne, my fewmets fyrst I drawe,
And them present, on leaves, by hunters lawe;
And thus I say: my liege, behold and see
An Hart of Tenne, I hope he harbord bee.
Fir if you marke his fewmets every poynt,
You shall them finde, long, round, and well annoynt,
Knottie and great, withouten prickes or cares,
The moystnesse shewes, what venysone he beares.”

The most honored personage had the authority to choose between the possible prey based on the presentation:

"Afterwardes when all the huntsmen be come together, they shall make their sundry reports, and present their fewmyshings unto the Price or master of the game in field, one after another, every man rehearsing what he hath seene. And when the Prince or other chiefe hath hard them and seene their fewmishings, he or she may then chose which of the Hartes he will hunt, and which he or she thinkes most likely to make him or hir best sport."

After the animal had been killed, one aspect of the Quarry stage was the presentation of the foot to the most eminent person present. Turbervile also describes the first cut as being reserved for this person, and shows the queen being presented with the knife:

“The deare being layd upon his backe, the Prince, chiefe, or such as they shall appoint, comes to it: and the chiefe huntsman (kneeling, if it be to a Prince) doth holde the Deare by the forefoote, whiles the Prince or chief, cut a flyt drawn alongst the brisket of the deare, somewhat lower than the brisket towards the belly. This is done to see the goodnesse of the flesh, and how thicke it is.”

Notice that no two of the queen's costumes are the same. This might support an argument that the cartoons were drawn from life (but I leave such questions to art historians).

Other Game

In addition to deer, Fouilloux and Turberville describe hunting of reindeer, wild goats, boar (which are carefully distinguished from domestic hogs), hare, cony (a type of rabbit), fox, badger (hunted with terriers), otter, wolf (including a discussion of werewolves, which eat man flesh), and bear. Towards the end of his book, Turbervile gives a unique account of coursing with greyhounds, a practice not held in as high an estimation in France as in England, and describes how wagers may be made in competitions.

Thanks to Richard Hawkins and Brian Duggan for sources, thoughts, and corrections.

Additional Sources: M. Thiebaux, The Medieval Chase (1967). Speculum, 42(2), 260-274; Queen Elizabeth I had a hunting lodge that is preserved by the City of London. For brief mention of the forest laws, which would have applied to the Queen's forests, see my piece on Robin Hood.

Read More

Bringing Service Dogs Into Schools: Different Facts, Different Courts, Different Results

Two recent cases involving school systems that refused to allow children to attend classes with service dogs produced different results, one court ordering the dog admitted and one court requiring that the parents continue to pursue remedies in an administrative setting before the case would be deemed ripe for a federal trial. The first case, in California, drew a Statement of Interest—effectively an amicus brief—from the Department of Justice. That Statement was cited in the second case, in North Carolina.

The cases have elements other than the law that distinguish them and which might arguably justify different results, but as more cases of this sort reach higher courts, the broader questions may become appropriate for Supreme Court review.

California School District Ordered to Admit Autism Service Dog

In C.C. v. Cypress School District, Case No. 8:11CV352-AG (C.D. Cal. June 2011), a federal district court in California granted a preliminary injunction requiring the Cypress School District to accommodate the use of a service dog by a six-year-old boy diagnosed with autism. The boy was nonverbal, had a low cognitive level, and had great difficulty interacting with others. His autism was regarded as severe. When he became anxious, he would often shriek, pace, plug his hears, laugh inappropriately, and flap his arms. He had begun pinching and scratching people, and started to wet himself at school.

The court maintained the child’s anonymity but press reports have shown him with Eddy, a golden retriever.

In May 2010, C.C. was paired with Eddy, a service dog from Autism Service Dogs of America (ASDA). Eddy had been trained for nearly two years, beginning when he was eight weeks old, and had developed skills specifically relating to C.C., such as interrupting impulsive and destructive behavior, preventing C.C. from running away or wandering off (sometimes called “elopement”). C.C.’s condition was described in testimony of Dr. Stephen M. Shore.

C.C.’s mother requested that the Cypress School District allow C.C. to use Eddy at school, but the District refused the request. Fearing the connection with Eddy might be lost, the parents kept C.C. at home during the last two weeks of the 2009-10 school year, but in the 2010-11 school year C.C. went without Eddy.

C.C. was in a classroom of ten students, all with autism, each of whom had individualized educational goals as required by the Individuals with Disabilities Education Act (IDEA). There were five adult educators in the room, four of whom were Applied Behavioral Analysis-trained aides.

The mother, on behalf of C.C., sued under the ADA, the Rehabilitation Act, the California Unruh Civil Rights Act, violations under various California statutes, and negligence, and moved for a preliminary injunction requiring the school to accommodate C.C.’s request. The federal district court concluded that a preliminary injunction was warranted because of possible irreparable harm in the absence of preliminary relief, the balance of equities, and the public interest.

To determine if the Cypress School District failed to make a reasonable accommodation, the court considered whether Eddy was in fact a service dog, and whether the school’s educational program would be fundamentally altered if Eddy accompanied the child to school. The court reviewed the federal regulations on service dogs, 28 CFR 35.104, and noted that the issue was whether Eddy’s work or tasks were directly related to C.C.’s disability.

The School District argued that Eddy was primarily present to comfort C.C. and that this was not enough to make Eddy a service dog. While there was no doubt that Eddy calmed C.C., the court determined that although this function alone might not qualify Eddy as a service dog, “it certainly does not foreclose the possibility.” Eddy prevented C.C. from elopement and helped prevent him from shrieking and throwing tantrums, both of which, according to the court, qualify as “preventing or interrupting impulsive or destructive behaviors,” under 28 CFR 35.104.

The School District argued that allowing the dog in the classroom would fundamentally alter the nature of the school’s program, but the court found “scant evidence” for this. The school noted that aides in the school would have to learn the commands that Eddy was trained to obey, hold the dog’s leash when navigating the campus, provide Eddy with water, and tether and untether him throughout the day. The court conceded that these requirements might impose some additional expenses on the school but concluded that the School District had “not currently shown that such changes are so drastic that the accommodation request would be unreasonable.”

The court also noted that (1) Eddy did not need to be given water during the school day, (2) was trained not to relieve himself while in school, (3) would only need his leash held when moving from one part of the school to another, and (4) generally required only two commands during the day—“Down Stay” and “Eddy, Okay.” The School District argued that it might be forced to hire additional staff, but the court noted that plaintiff had provided “evidence that no school in which an ASDA dog has been placed has ever had to hire such additional staff.” Presumably the dog was trained to poop and pee on command in the morning before going to the school, so a half-day or slightly longer program would not have required his being taken outside to relieve himself.

The School District argued that having Eddy in the school would impede C.C.’s educational process and independence. The court cited Sullivan v. Vallejo City Unified School District, 731 F.Supp. 947 (E.D. Cal. 1990), which held that whether a service dog enhanced a student’s educational opportunities was irrelevant under the Rehabilitation Act. (Sullivan concerned a student with cerebral palsy, learning disabilities, and right-side deafness.) The court noted that issue of fundamental alteration concerned whether the school would be forced to alter its educational program for the other students with autism. The school argued that it would have to teach the remaining students to ignore the dog and referred to possible canine aggression, but the court described this “fleeting discussion of the impact on other children” insufficient to show that admitting the dog would produce a fundamental change to the school’s program.

The federal court described the School District as appearing to argue that “because Plaintiff is making substantial progress in the program, Plaintiff will not suffer any irreparable harm even if he continues in this program without a service dog,” but the court found this argument unpersuasive. The court noted that C.C.’s “key argument concerning irreparable harm” concerned the bond the child was forming with the dog, which if broken could destroy the potential benefits of the service-dog relationship. As will be discussed below in a case arising in North Carolina, another federal court was less impressed with this argument than the California federal court here.

Nevertheless, the court imposed a $50,000 bond on C.C. before the preliminary injunction became effective. The plaintiff had argued that no bond should be required, and the School District did not address the issue, but the court concluded that there could be costs associated with allowing Eddy into the school. This financial requirement is unfortunate as it would preclude many families from obtaining the relief granted under the principles enunciated in the case.

Department of Justice Files Statement. The Department of Justice filed a Statement of Interest because the suit “implicates the proper interpretation and application of the ADA, Section 504, and related statutory provisions, regulations, and technical assistance materials it has issued, including its regulation defining the term ‘service animal,’ 28 C.F.R. § 35.104, and requiring public entities, including schools, to make reasonable modifications in rules, policies, and practices that are necessary to avoid discrimination, including reasonable modifications to permit the use of service animals by individuals with disabilities.”

The DOJ noted some facts that did not make it into the federal court order:

“C.C.’s life has been filled with isolation, anxiety, and fear, not just for C.C., but for his parents, too…. C.C. became extremely anxious at everyday places, such as the beach, aquarium, stores, or the airport…. Family outings with C.C. required hyper-vigilance to ensure that the manifestations of his disability did not result in injury. After C.C. fled the house and required police assistance to be located and returned home, his parents decided to get C.C. an autism service dog, an investment that cost $14,000, to protect C.C. and help him manage the manifestations of his autism.” (citations to court record omitted)

As to the dog’s training, the DOJ adds:

“Eddy is trained by ASDA to (1) resist by tether when C.C. attempts to elope or bolt; (2) redirect or ground his focus; (3) apply deep pressure when C.C. begins stimming [engaging in repetitive behaviors]; (4) nudge, lick, or otherwise redirect C.C.’s attention when he becomes anxious; (5) remain near C.C. to carry his communications cards; and (6) assist C.C. in his ability to communicate and socialize.”

As to Eddy’s success with C.C., the DOJ noted:

“Eddy enabled C.C. to visit the beach with his family, redirecting much of C.C.’s anxiety…. Eddy also calmed C.C.’s customary anxiety caused by a visit to the doctor…. Even a trip to the airport, an unfamiliar environment that would normally have triggered severe manifestations of C.C.’s autism, occurred with little ordeal due to Eddy’s work…. After years of indecipherable vocalizing, including the inability to say ‘Mom’ or ‘Dad,’ within three months of being matched with Eddy, C.C. said ‘Eddy.’”

The Statement of Interest noted that the ASDA trainer had planned to conduct training for the school’s staff on autism service dogs but the school declined to permit Eddy inside. The court observed that because “Cypress refused to allow Eddy in school, Cypress has no knowledge of how C.C. uses Eddy or how Eddy would behave in school.” Refusing to even let staff learn about the dog, as I discussed in Service and Therapy Dogs in American Society, often influences courts.

The DOJ then describes harm from the separation resulting from the school’s actions:

“In the end, C.C. went to school while Eddy stayed home, and the harm caused by this separation was immediately apparent.... For example, in the first three days, Eddy fled from a school aide and nearly succeeded in boarding the wrong school bus…. Moreover, since school began, the bond between C.C. and Eddy has deteriorated because of the separation…. C.C. is becoming more distant with Eddy and requires more prompting.... Every school day, C.C. loses valuable time when he could be continuing to work and bond with Eddy to increase his safety and quality of life. Because C.C.’s work with Eddy is limited to after school, the bond between the two is dissolving, making the assistance less effective.”

The DOJ observes that C.C. may use a service animal for the rest of his life. Therefore, the failure to form the best bond possible may affect C.C. not only as a student, and while he is going to school, but even afterwards. The Statement of Interest summarizes research on the value of using service dogs with autistic children, and argues that C.C. was discriminated against and a preliminary injunction should issue. The school has remedies in the event that a service animal is out of control or not housebroken.

As to the School District’s fundamental alteration argument, the Statement notes:

“Cypress speculates – since it has not experienced Eddy’s presence in the classroom – that presence of the service animal would fundamentally alter the Individualized Education Programs of other students. This type of reasoning would lead to the erroneous conclusion that a fundamental alteration in the nature of a school’s special education program results whenever one student’s circumstances are significantly modified, in an IEP [individualized education plan] or otherwise, such as a child coming to school for the first time using a wheelchair. This wide-ranging argument is not supported by the ADA. It is hard to imagine any alteration relating to C.C.’s use of a service animal that might be so fundamental that it would alter the nature of Cypress’ special education program, since the program is designed to be highly flexible and tailored so as to meet the needs of individual students with disabilities.”

The DOJ’s Statement is worth reading not only for its significance in this case, but to show what the agency is likely to argue in other service animal situations involving school children.

Failure to Exhaust (Temporarily) Derails Parents’ Efforts to Get School to Admit Service Dog

A four-year-old boy living in Vale, North Carolina, had been diagnosed with “static encephalopathy due to fetal alcohol exposure, Fetal Alcohol Spectrum Disorder (FASD), mild developmental delay, sensory integration difficulties, sleep apnea, insomnia, obsessive-compulsive traits, and some features of pervasive developmental disorder.” The child was also described as having “aggressive and self-injurious behaviors, hyperactivity, lack of impulse control, elopement, and other problematic and dangerous conduct.” As in the preceding case, the child’s initials are used by the court, but press have further identified the child and the parents who adopted him.

As described by the federal district court in A.S. v. Catawba County Board of Education, 2011 WL 3438881 (W.D.N.C. 2011), A.S. began working with Chatham, a service animal, in September 2009. North Carolina provides for registration of service animals and issues registrations to “a person with a disability who makes application for registration of an animal that serves as a service animal or to a person who is training an animal as a service animal.” The law, N.C. General Laws 168-4.3, also provides that the Department of Health and Human Services, which maintains the service animal registry, may itself issue a certification or “accept the certification issued by the appropriate training facilities.” Chatham was Service Animal # 296 in the North Carolina registry, having been trained for 11 months for 4 to 6 hours a day to provide Deep Pressure Therapy through actual physical contact with A.S. “as well as other techniques for redirection.” The court cited documents submitted that A.S. was “generally aversive to human touch” even from his parents and other adults.

A.S. was attending a pre-kindergarten program at Mountain View Elementary School in Catawba County, A group of school personnel and professionals collaborated with A.S.’s parents to devise an Individualized Education Plan (IEP) for A.S. The parents brought Chatham to the attention of the school, but to their disappointment, they were notified six days before the beginning of the 2010-11 academic year that A.S. would not be allowed to have Chatham present with him during the school day. The Catawba County Board of Education apparently questioned whether Chatham was, in fact, a service animal.

The parents alleged that the Board never told them why their request that A.S. be accompanied by Chatham at the school was denied and never spoke to Chatham’s trainer. They then requested a modified schedule to mitigate the “ongoing harmful effects” of A.S.’s separation from Chatham. The Board allowed a pickup of A.S. at noon so that A.S. could nap at home with Chatham.

At some point after the school year began, the IEP team at the school reported that A.S. “made a nice adjustment” and was able to access the programs, facilities, and services of the school to the same extent as the school’s nondisabled children, and that A.S. did not need the service dog in order to benefit from the special education services he was being provided.

The parents sued on behalf of A.S., alleging discrimination under the Rehabilitation Act, the Americans with Disabilities Act, and regulations issued under those Acts. They sought monetary damages for training costs incurred to restore and maintain the service animal’s training during the period of separation.

The school responded by arguing that the parents had not exhausted administrative remedies, as required under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1415(l). Administrative remedies to be exhausted under this provision include an impartial due process hearing to be conducted by the State or local educational agency.

The district court noted that an exhaustion requirement serves two main purposes: allowing an administrative agency an opportunity to correct its own mistakes while discouraging disregard of the agency’s procedures, and resolving disputes much more efficiently and inexpensively than is the case with litigation. Exceptions are allowed by courts to exhaustion requirements if the administrative effort would be futile or would cause severe harm. The court summarized the issue of possible harm as follows:

“The Plaintiff argues hardship in that according to Plaintiff the all important relationship between A.S. and Chatam [the name is usually spelled with an ‘h’ in the case and press reports], established during lengthy training, would be doomed if the dog continues to be excluded from the Plaintiff's presence during school hours commencing with the next school year. The Plaintiff argues that the service dog's presence for A.S. is the only treatment which worked to ameliorate the child's disability, at least in his home environment, in particular to address the problem of his repeated ‘meltdowns.’ It may be that the effectiveness of Chatam as a service dog for Plaintiff's neurological problems would tend to be degraded by the absence of the dog during school hours. It is, however, on the showing before the Court, insufficient as a claim of hardship. In particular, it is insufficient to overcome the evidence supporting the very successful educational program put into place thus far for A.S. The latter has resulted in his marked progress educationally and socially by way of the current Individualized Education Plan (‘IEP’) put into place under the IDEA.”

The meltdowns referred to by the parents involved such behaviors as A.S. banging his head against the floor and other hard objects, biting himself and his clothing, drooling, and pulling his own hair as hard as possible. The court noted, however, that there was evidence that the meltdowns were “subject to successful management by techniques currently applied in the school setting.”

The parents argued that part of the harm coming from A.S.’s separation from Chatham resulted from an increased attachment between A.S.’s mother and Chatham. The parents produced an expert, but his testimony on the issue was that research was conflicting as to whether increased bonding between the mother and the dog might detract from the dog’s benefits to A.S. The court also noted there were five other siblings living in the home, making this environment different from that of the school. Autism service dogs are somewhat atypical in that the commands of a handler, usually a parent, must direct the dog, but the commands of the child must often be ignored.

The parents argued that exhaustion arguments had been denied by two other courts, Sullivan v. Vallejo City Unified School District and C.C. v. Cypress School District, the first case discussed above. The federal district court in North Carolina, however, found that both these California cases “fail to adequately address how a litigant escapes the express mention of claims brought under the ADA and Section 504 within § 1415(l) [of the IDEA].” The North Carolina federal district court also referred to the Statement of Interest filed by the Department of Justice in C.C. v. Cypress School District, but noted that DOJ’s filing had to do with the merits of the cause of action there, not the procedural issue before it regarding A.S.

The district court granted the school board’s motion to dismiss, but without prejudice, meaning that this case may continue after an administrative hearing (or potentially an appeal to the Fourth Circuit).

Can the Cases be Distinguished?

It could be argued that the two cases present largely identical facts that were decided differently because of the effectiveness of the lawyers and evidence for each side or because of differences in the philosophies of the judges before whom the matters were brought. That might, however, be somewhat simplistic. The first case refers to a clear decline in the student’s mental condition as a result of his not being able to attend school with his dog, while the second case appears to involve a student who improved despite the absence of his service dog.

The federal court in North Carolina saw the issue before it as primarily procedural, while the federal court in California looked directly at the child and the harm suggested by the evidence. Since the North Carolina case, at least as described in the court’s opinion, involved a child who continued to improve despite the separation from his service dog, the court apparently felt that some delay was acceptable. The Department of Justice would disagree, having argued in California that the use of a service dog was, as with other aids available to a disabled person, up to that person or his guardians. The fact that the child might improve scholastically without the dog was irrelevant given that the child’s ability to use the dog outside the school, or to use dogs after the individual was finished with school, would be harmed by the increased difficulty in forming the necessary bond resulting from depriving the child’s access to the dog in the classroom. This argument, clearly stated in the DOJ’s Statement of Interest, essentially applies the general principles of access law for service animals to schools. The approach of the federal court in North Carolina allows the possibility of distinguishing school environments from most places of public accommodation.

It must be doubted whether the North Carolina court would have taken the same approach with a guide dog. The regulations issued by the Department of Justice put all service dogs, even psychiatric service dogs, on the same plane when it comes to assessing access provisions. Yet the North Carolina school was permitted to make such a distinction, even if only for a procedural reason. Nevertheless, the court must have considered that the hearing was not useless, that it could somehow justify continued separation of the boy from the dog. It seems unlikely that this could receive support under any current interpretation of the relevant disability law. A specialized school for the blind might insist that students use white canes instead of dogs, but this would presumably not occur without the possibility of a reasonably accessible school permitting guide dogs. Such a situation would involve a fundamental alteration and would not be analogous to that in the North Carolina school.

Regardless whether comparing these two cases is a matter of apples to apples or apples to oranges, the California federal court has the better reasoning. Having been consulted in other cases (none of which reached trial), I have come to believe that the disputes often arise when a school district’s administrators, or those influencing those administrators, have a knee-jerk skepticism about the benefits of service dogs. When the initial presumption is that the parents are trying to send a pet to school, the reaction will often be negative since some administrators do not understand that service animals are not pets. A school that does not even allow its staff to encounter the dog and its trainer in advance of a placement is prejudging the value of the dog.

The fact that these courts are not agreeing, and others are facing similar issues, may mean that this will eventually become a matter for the U.S. Supreme Court.

For a recent article about ways dogs are helping in schools, see the piece posted on the website of Online Colleges, 9 New Ways Schools Are Using Dogs. Thanks to Jasmine Hall for bringing this to my attention.

Read More

Dog Park Law 101

Dog Park Discussion.  Fran Breitkopf and I were interviewed by Fred Kray on pblnn.com. Click on the listen link under Dog Law Reporter and Stray Dog.

Mornings in New York begin for many people with a quick walk to a dog park where they give their pets a few minutes of running and playing before confining them to apartments until dog walkers arrive. At 10 in the morning in Seattle, seniors and dog-walkers supervise the play of dozens of dogs until the soccer moms arrive around noon. In Phoenix, young professionals gather after work and watch their dogs cavort, exchanging information on what groomers give the best cuts and whether raw meat is a good idea or not.

In urban and suburban plots averaging an acre or two or three, that portion of the country that owns and enjoys dogs is becoming accustomed to the rhythms of dog parks, an entire sociology that must soon be described in masters’ theses and debated at academic conferences. Inevitably, conflicts come with any cultural change, conflicts mean legal disputes, and the first fruits of this process are now evident in some judicial decisions and legislative trends.

It is time to take stock of where this fledgling area of law is going.

A recent Westlaw search found 32 legal decisions containing the phrase “dog park,” though some of these cases only had one hit because an incident occurred near a dog park which had nothing to do with dogs or the dog park or dog owners or anything else worth discussing in any depth here. A dog ordered euthanized by authorities in Long Beach California, for instance, was found to be a “vicious animal,” having attacked a number of other dogs, including a pug at a dog park. Caffray v. City of Long Beach, 2005 WL 3360940 (Ct. App. 2005) Another case involved an allegation of negligence in the construction of a bicycle park in which the plaintiff broke his neck. The construction of the bicycle park was affected by the simultaneous construction of a dog park, but the law of the case could not be said to concern dog parks per se. Spiegelhalter v. Town of Hamden, 2010 WL 626066 (Conn. Super. Ct. 2010)

Most law on dog parks is municipal and belongs in the category of local ordinances. Legal disputes based on such ordinances are seldom going to reach courts that issue written opinions. Nevertheless, states are beginning to see that various liability issues are best addressed on a state-wide level, and the expansion of dog parks in the United States is undoubtedly going to result in additional law in the near future. Here’s what we’ve found so far.

Creating a Park

Cities and towns choosing to create dog parks will generally prefer to use land they already own, keeping expenses to a minimum by looking for a suitable area that can be carved from undeveloped land or perhaps from an already existing park. In doing so, the city must be sure that zoning or other land use restrictions do not apply. As demonstrated by a case from Michigan, this is not always simple.

The Woodstock, New York, Dog Park, shown in two pictures here, was created in a wooded area owned by the town. The choice of the area was in part due to a desire to keep the park in an area that afforded the shade of a natural wooded canopy and the retention of the forest feel. It has proven to be a very appealing location to both dogs and handlers.

Land Use Restrictions

In 1915, the Bloomfield Estates Company recorded deed restrictions on lots in the Bloomfield Estates subdivision. In 1928, Bloomfield Township purchased Lot 52 to create a park. A complaint was filed to remove deed restrictions but the complaint was voluntarily dismissed. In 1938, the city of Birmingham was deeded Lot 52, being used as a park, but “subject to the building and use restrictions of record.” The land was incorporated into Springdale Park, a 55-acre park administered by Birmingham. In 2003, the plaintiff learned that the city planned to use Lot 52 of Springdale Park as a dog park and notified the city that the Association would enforce its rights under the deed restriction.

The city argued that the Association had waived its right to enforce deed restrictions. The trial court did not agree, but determined that the deed restriction was not violated, finding that a dog park constituted a residential use. The Court of Appeals reversed in a split decision. This court believed that the Association had waived its right to preclude use of Lot 52 as a park of the sort it had been used for, but found that a dog park involved “more serious violation of the deed restrictions,” which the Association could challenge.

Before the Michigan Supreme Court, the city fleshed out its argument that a dog park was a residential use, noting that homeowners could allow dogs to wander in their own backyards under “residential purposes only” restrictions. Thus, a dog park was sort of a collective back yard for a neighborhood, and as such a residential use.

The Michigan Supreme Court disagreed:

“[A] backyard is attached to a home, and hence fits within the actual meaning of the term ‘residential.’ That is, a backyard is an extension of a residence. A dog park is not attached to a home, and hence does not accord with the meaning of the term ‘residential.’ Moreover, a dog park lacks two characteristics of a backyard, which suggests that a dog park is not included within the commonly understood meaning of ‘residential’ use. First, because a backyard is attached to a home, the master exercises some level of control over the backyard. Here, no one person controls the dog park. Second, the dog park may permit use by a great multitude of dogs at one time, while a backyard generally contains at most a few dogs. These characteristics sufficiently distinguish a dog park from the meaning normally ascribed to ‘residential’ use, thereby indicating that the dog park violates the deed restriction limiting Lot 52 to ‘residential’ use.”

The court also noted that the number of dogs in a yard might be limited by local ordinance, but that there was no limit on the number of dogs in the dog park, another distinction between dog parks and residential uses of property.

The Supreme Court agreed with the appellate court that the dog park was a more serious violation of the deed restriction than the previous park uses made of the space by the city, and therefore the Association could challenge the dog park usage. A dissenting justice, apparently a dog person, argued that the dog park was a residential usage. Bloomfield Estates Improvement Association, Inc. v. City of Birmingham, 479 Mich. 206, 737 N.W.2d 670 (2007). For earlier history, see Bloomfield Estates Improvement Association, Inc. v. City of Birmingham, 2006 WL 626191 (Ct. App. 2006). For an analysis of the case under property law, see D.E. Nykanen (2009). Real Property. Wayne Law Review, 55, 575-598, at 592-3.

Opposition Can Be Well Financed

Anyone familiar with creating a dog park knows the headaches of navigating local and regional politics, the wars between dog people and anti-dog people, the ways that an effort can be blocked, adjusting that effort to meet legitimate objections, and so on. A Massachusetts case shows that a well-financed objection can kill a proposal even if it might not win on the merits.

In 2006, residents of Foxborough, Massachusetts, established a 2.8 acre no-leash dog park in the Cocassett River Recreational Area. Opponents of the park that the court called the “Baker group” filed an action against the town board, arguing that it violated deed restrictions on the donated land where the dog park was built. The board voted to settle the lawsuit because of concern with the litigation costs. The conservation commission viewed the dog park as an appropriate use under deed restrictions, but the town manager filed a motion for entry of a consent order, agreeing to close the dog park. Residents favoring the dog park then sought to intervene, but the Land Court denied the motion to intervene. The appellate court agreed, holding that the group lacked standing. The board and the town manager had control of all interests in the donated land.

The case is primarily procedural. If the board and town manager had decided to fight opponents of the dog park, this case does not indicate who would have won. It is, however, a lesson that supporters of dog parks must remember. Opponents can win merely by threatening a sufficient public cost to maintaining a dog park. Baker v. Board of Selectmen of the Town of Foxborough, 2008 WL 4799468 (Mass. Land Ct. 2008), aff’d 77 Mass.App.Ct. 1117, 2010 WL 3257845 (2010), aff’d sub nom. Hubrich v. Town of Foxborough, 78 Mass.App.Ct. 1120, 939 N.E.2d 803 (table), 2011 WL 103949 (2011).

Easement Access to a Dog Park

Establishing a dog park may require more than merely land for the park. An easement may be necessary for access to the park. This may involve separate environmental impact issues. (See Public Notice of the Alaska Department of Natural Resources, Division of Mining, Land and Water, Northern Regional Office, 4/22/2008 (2008 AK Reg. Text 135066(NS)), regarding a proposed easement to the Fairbanks Dog Park, Inc.)

Using Federal Property for a Dog Park

When looking for a location for a dog park, do not exclude the possibility that federal properties might be available for a small fee. The federal government permitted development of a dog park on land no longer used for military purposes at the former Puget Sound Naval Station at Sand Point. See Government Accountability Office (June 2006). Federal Real Property: Most Public Benefit Conveyances Used as Intended, but Opportunities Exist to Enhance Federal Oversight, GAO-06-511. Our friend, Kingsbury Parker sends us this description of the area:

“The entire naval station complex is being converted into public use facilities such as indoor tennis, theater group productions, outdoor concerts, the start and finish of various races, nature trails, and some leasing of land to groups that focus on sports activities such as the Mountaineers Club building and a health club with two indoor soccer fields, They completed a huge open field used for soccer practice and frisbee competitions, among other things, and they also built a very nice soccer field right next to that. There is a hill called fittingly Kite Hill and the whole complex is bounded by Lake Washington on the East. The dog park is well fenced with a long trail heading down to the lake where quite a few dogs are in the water pretty much all day. That lake access for dogs is fenced about 30 feet out into the water so dogs can swim out and around onto on-leash land if the owners are not careful. There is an even larger area on the other side of the fence to the south that is on-leash where a lot of people go jogging or walking. Various scoff-laws sometimes take their dogs off-leash in these areas although the fines start at $125, so not many do that.”

Officials Designated with Authority to Create Dog Parks

Some regulations delegate the responsibility for creating dog parks to specific officials. In the District of Columbia, the Director of the Department of Parks and Recreation is delegated the authority to issue rules to establish procedures for selecting a site for a dog park as well as the procedures for operation, maintenance, and use of a dog park. DC Order 2007-53 (delegation of authority under the Dog Park Establishment Act of 2005) (2007 DC Reg. Text 68645(NS))

Advice to Groups Seeking to Establish Dog Parks

The American Kennel Club has created a web page with useful advice on how to start a dog park. The Hamden Responsible Dog Owners’ Group has posted a particularly insightful description about how a group of individuals interested in building a dog park in Hamden, Connecticut, went about it.

Dogs Permitted to Use a Park

New York City imposes requirements on handlers who use dog parks, known as “dog runs” in the city’s code:

“Dog Runs: Certain fenced park areas may be designated by the Commissioner as dog runs, and persons owning or possessing dogs that are wearing a license tag and vaccinated against rabies pursuant to the laws of the State of New York and City of New York are permitted to allow such animals to remain unleashed in these areas. Users of dog runs shall obey posted rules. Users of such dog runs shall provide proof of current vaccination against rabies and proof of current licensing upon the request of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other Department employee or employee of the DOHMH, the refusal of which shall constitute a violation of §1-03(c), §1-04(i) and of this paragraph.” RCNY 56.1-05(r)(3) Under RCNY 24.161.05(b)(1), the Department of Parks and Recreation can close dog runs at night.

The American Kennel Club also recommends a number of access rules, including: (1) puppies using the park should be at least four months old, (2) dogs in heat should be excluded as should dogs with a history of aggression, (3) dogs must carry a leash at all times and be leashed before entering and prior to leaving the park, and (4) violators of park rules should have their privileges suspended.

The District of Columbia dog park regulations, reproduced in full as an appendix below, specify a number of restrictions on dogs and handlers using area dog parks, including that a handler shall:

• not use a spike or choke collar on a dog in the dog park.
• immediately leash and remove from a dog park his or her aggressive dog; an aggressive dog is “a dog whose behavior is characterized by unprovoked snarling, growling, or attack posture.”
• not have a dog designated as a dangerous dog or a potentially dangerous dog in the dog park; a dangerous dog is defined under D.C. Law as a dog “that has bitten or attacked a person or domestic animal without provocation; or, in a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals.”
• control excessive barking.
• report all animal bites to the Department of Health within 24 hours.

Under DC rules, a handler is to be at least 16 years old. A child under 16 may enter a park only with an adult. DC parks are to have permanent signs, in both English and Spanish, stating the rules of the park. Each park has a sponsoring group responsible for enforcement of its rules, but those groups can seek the assistance and authority of other agencies, such as the police.

Some Colorado parks restrict the number of dogs a single handler can bring at one time into a “designated dog off-leash area.” See rules for Rifle Falls State Park and Cherry Creek State Park (Colorado Regs. 2.405-1 (2010 CO REG TEXT 233281(NS))).  The Presidio Trust requires that persons walking four or more dogs in Area B of the Presidio of San Francisco have a Commercial Dog Walking Permit from the City and County of San Francisco (77 Fed. Reg. 69785, November 21, 2012). This suggests, of course, that walking a large number of dogs can be a source of revenue for a community. 

Dog Park Enclosure

The District of Columbia provides that a dog park “shall be completely enclosed by a fence and gate, both no less than 5 feet in height.” D.C. Code 8-1808.01. One of the authors (John) uses a dog park in Phoenix that was only recently fenced in. The park was used primarily by owners of small dogs before the fencing, some of whom objected to the fencing because they (correctly) believed it would bring in large dogs. The solution here is generally to create two parts to the dog park, one for large dogs (e.g, 30 or 35 pounds), and one for smaller dogs.

Dog Parks Can Be Periodically Closed for Maintenance

In a case concerning campground usage, the Supreme Court of Hawaii in dictum noted that the designation of a space as a dog park does not mean that the space cannot be closed for maintenance on two days of the week. A temporary restriction on dogs could be imposed without the space losing its designation as a dog park. Hawaii v. Hitchcock, 123 Hawaii 369, 235 P.2d 365 (2010)

Running at Large Statutes

Many ordinances prohibit dogs running at large, and many states have statutes specifying that such laws do not apply to dogs involved in hunting where this is permitted. Illinois has revised its “running at large” statute to state that a “dog that is in a dog-friendly area or dog park is not considered to be running at large if the dog is monitored or supervised by a person.” (Ill Statutes Chap. 510.5.9)

The District of Columbia states that a dog being at large “does not include a dog in a dog park that is under the verbal command of a responsible adult.” D.C. Code 8-1801. This is a better approach, since it allows enforcement against someone who is not in control, or not responsible enough to be so. The District of Columbia specifically prohibits permitting a dog on a school ground “when school is in session on any public recreation area, other than a dog park, unless the dog is leashed.” D.C. Code 8-1808. For New York, see RCNY 24.161.05(b)(1).

Statutes and rules requiring that owners pick up their pets’ waste generally apply to dog parks as to other public areas. (See Consolidated Colorado Regulations 2.405-1.) General recreational park usage rules apply to dog parks, though this will not always be stated. (See Alabama Reg. 797 X-4, General Park Rules (9)(a).)

Owner Criminal Liability for Attacking Other Users of Dog Park

One of the worst nightmares in the use of a dog park happens when someone brings an overly aggressive dog and lets it roam out of control to harass, bite, and even kill other dogs. If there are enough users of the park present when such a handler and dog enter, they may be able to persuade the person to leave with his dog. If an escalation occurs, a person with a dog under attack is faced with the problem of protecting the dog and trying to get some identification from the handler of the aggressive dog. Although some dog parks use sign-in systems, these are frequently ignored, sometimes by virtually everyone, and tracking down a handler who is not likely to return for some time can be difficult. Of course, as the Thurber cartoon implies, it's sometimes difficult to say who's causing the problem.

First Bite May Be Excused

A recent Hawaii case shows that the handler of an aggressive dog may get a pass the first time it is known to attack people or other dogs, but the second time is not likely to be overlooked. The Hawaiian Humane Society dog park in Honolulu is an off-leash park where Ronnie MacDonald took his pit bull, Beautiful Baby Girl, on June 29, 2006. Three 12-year-old girls arrived at the park and began admiring the dog, which bit two of them, causing bleeding and puncture marks. The dog attacked them several times. They went to the Humane Society and got bandaids. Humane Society officials told MacDonald to leave the dog park. MacDonald agreed that the girls had not provoked the dog, but insisted his dog had never bit anyone before.

A second incident occurred on July 19, less than a month later, near a Jack in the Box restaurant. MacDonald was pushing a wagon when Ryan Cambra passed in the other direction. The dog bit Cambra’s below the waist, causing bleeding and leaving a one-inch scar.

The trial court levied a $50 fine for animal nuisance, and sentenced MacDonald to concurrent six-month terms with 100 hours of community service for negligent failure to control a dangerous dog (a crime under the Revised Ordinances of Honolulu 7-7-2). The court ordered Baby Girl to be destroyed but stayed the sentence pending appeal. The Court of Appeals noted that negligence could be found even if a dog had not previously bitten a person, though in sentencing the first conviction is a petty misdemeanor but the second can involve more serious penalties for a bite committed within five years of a previous conviction.

The appellate court concluded there was insufficient evidence to convict MacDonald of failure to control a dangerous dog as to the first incident, but there was substantial evidence for conviction of this crime on the second incident. The court affirmed the conviction regarding the second incident. Since the sentences were concurrent, there was still a six-month prison sentence, but whether it was served in full was not stated in the decision. Hawaii v. MacDonald, 120 Hawaii 48, 200 P.2d 417 (2009)

Evidence of Propensity Needed for Liability

That it can be difficult to establish knowledge of a dog’s propensity to bite is indicated by a case from Kingston, New York. An off-duty police canine handler for the New York State Police was walking two dogs in Kingston, New York, when one of them attacked another dog being walked at the location. The owner of the dog that was attacked sued.

The attacking dog had been an explosives detection dog but had been retired for six years. For some reason, the dog had continued to accompany the defendant to work. The dog was trained in a passive alert and had been socialized so as to work in heavily populated areas. It had received some training in protecting its handler, meaning, according to the defendant, that the dog could defend her against an aggressive attack “while she was on duty,” a situation that had never arisen. The dog had not been used in apprehending any suspects and, according to the defendant, “had never bit, barked at, or otherwise displayed aggression toward another person or animal.” The court found this testimony was sufficient to establish that the defendant had no actual or constructive notice of the dog having any vicious propensities. Under New York law, an owner is strictly liable for harm an animal causes as a result of vicious propensities he or she knew of or should have known of. Therefore, defendant’s motion for summary judgment was granted. The court stated:

“[T]here is no support in the record for a finding that defendant kept the dogs as guard dogs, and we are not convinced that the formal training that the dogs received as members of the State Police K9 unit equates with the dogs being kept as guard dogs. Nor do we find that the formal police training of the dogs constitutes either evidence of viciousness or provided defendant with notice of such …. Moreover, not only is evidence of a dog's breed insufficient to demonstrate that an issue of fact exists, ‘where, as here, there is no other evidence even suggesting that defendant knew or should have known of [the dogs'] allegedly vicious propensities, consideration of the dog[s'] breed is irrelevant’ ….”

What was not explained was why the dog could not be recalled quickly. A well-trained police dog should immediately return to its handler on command. Also, there should have been deeper analysis of what “handler protection” training involved. Thurber v. Apmann, 2012 N.Y. Slip Op. 00453, 2012 WL 225395 (Ct. App. 2012) An earlier New York case had found that training an animal to attack a “bite sleeve,” used in suspect apprehension training, was enough that “a jury could reasonably conclude that the dog's behavior with regard to the bite sleeve was sufficient to put defendants on notice that he might bite someone, as it is alleged he did to the child.” Gannon v. Conti, 2011 WL 2637562 (Ct. App. 2011).

Public Nuisance Complaint

A case from Connecticut did not contain enough facts to know exactly what happened, but the Connecticut Superior Court concluded that a person attacked in a dog park could bring an action for public nuisance against another user of the park whose dog had attacked her. The defendant did not need to control the dog park to be liable for the nuisance created by an out-of-control dog. This is a matter regarding remedies, but there will generally be some way in which an irresponsible dog owner can be liable for a vicious dog, and liability can probably be both civil and criminal. Nucci v. Harding, 2009 WL 1142578 (Conn.Super. 2009)

A particularly useful website regarding dog bite law, with a number of pages devoted to dog bites occurring in dog parks, is the site of Kenneth Phillips, a Beverly Hills attorney who specializes in dog bite law.

Government Liability for Conditions in Dog Park

In a suit against Piedmont, a California city, a woman alleged that she slipped and fell on the pathway in a dog park because it was maintained in a dangerous condition. She was walking her dog, named Diogi, on Jun 29, 2004, in the off-leash fenced in section of the park. The park had a posted rule stating that owners were “responsible for all injuries and/or property damage.”

The city cited the state's recreational use immunity statute, California Government Code § 831.4, which provides immunity to a public entity for an injury caused by a condition of an unpaved road or trail “which provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas and which is not a(1) city street or highway or (2) county, state or federal highway or (3) public street or highway of a joint highway district, boulevard district, bridge and highway district or similar district formed for the improvement or building of public streets or highways.”

The plaintiff argued that the path in the dog park was a sidewalk, for which a city could be liable. The trial court agreed with the city, and the California appellate court affirmed. Amberger-Warren v. City of Piedmont, 143 Cal.App.4th 1074, 49 Cal.Rptr. 631 (Ct. App. 2006).

In a case arising in Buffalo, New York, Mary J. Hall had taken her pets to a temporary dog park inside of Lasalle Park in Buffalo in 2008.  On exiting the park, she tripped over and fell on a horizontal metal bar that formed the bottom of a section of a temporary fence where there was a gate.  The gate may have closed on her after she fell. 

Hall sued City Fence, a company that owned and installed the fence, and various government entities including the City of Buffalo, Erie County, the Erie County Parks Department, and others for “failing to design, construct, install, and maintain the entryway gate in a reasonably safe manner,” including “installing a temporary gate in such a manner that a lower bar was raised to an unreasonable height causing a tripping hazard.” 

The park had been established by private citizens, organized by the Niagara Frontier Veterinary Society, Inc., which was also a defendant, along with the Society’s president at the time of the incident.  Lasalle Park was owned by the City of Buffalo but was operated, maintained, and managed by the County of Erie, both of which were defendants. 

Erie County, under its authority to “regulate special events and permitted uses” in the park, had issued a park use permit to allow the erection of temporary fencing for a “temporary off-leash area,” i.e., a dog park.  The permit was issued to the Veterinary Society and its officials.  The initial permits expired in 2007 but officials in City and County government did not dismantle it and made a “well publicized decision” to allow it to remain in place and be used by the public as a dog park.  The accident occurred in 2008. 

The court rejected the County’s argument that it could not be held liable for the allegedly dangerous condition as it did not own Lasalle Park.  The City of Buffalo moved for dismissal on the basis that, although it owned the Park, it had delegated maintenance responsibilities to the County.  The court held that the City had a duty to maintain the park, and the dog park inside it, in a condition reasonably safe for users.  The City, however, had no duty to warn of an open and obvious condition of the premises.  The motions of the City and the County for summary judgment dismissing the amended complaint were denied.  Hall v. City Fence, Inc., 36 Misc.3d 1237 (Sup.Ct., Erie County, 2012)

Immunity for Conditions in Dog Parks

Illinois has provided that any “municipality or political subdivision allowing dog parks shall be immune from criminal liability and shall not be civilly liable, except for willful and wanton misconduct, for damages that may result from occurrences in the dog park.” Illinois Statutes Chap. 510.5.35

Recreational Use Immunity

We have spoken with a number of people involved in building dog parks who assure us that a recreational use immunity statute in their state will insulate their towns from liability with regard to injuries that may occur in a dog park. Perhaps, but a number of recreational use immunity statutes provide exceptions that may remove immunity as to the town or other legal owner or manager of park property. Such exceptions might include problems as to which the town has or should have knowledge, yet decided to ignore, or modifications to the land which were made negligently. This could, arguably, include the fact that in many states there is no formal legal recognition of public places where leash laws do not apply. The ability of a town to avoid liability under a recreational use immunity statute may well depend on the state where the park is located, as there are many variations in such statutes, and courts have not been consistent in their interpretations of even commonly used provisions.

Charging a fee for access to a recreational area may erase the immunity held by the landowner allowing recreational use. In De Dios v. Massachusetts Executive Office of Environmental Affairs, 23 Mass. L. Rep. 565 (Mass. 2008), a tree branch fell on individuals in the parking area of Quinsigamond State Park. The Massachusetts statute provides for immunity to any “person having an interest in land … who lawfully permits the public to use such land … without imposing a charge or fee therefore….” Because of a $2 parking fee, the Massachusetts Supreme Court declined to grant the state summary judgment on the basis of the immunity statute. Thus, if a town charged a dog park group for use of the park, say in part to cover garbage collection expenses but in part to raise revenue, immunity for the town might be put in jeopardy.

Some states, such as New York, have narrowly drawn recreational use immunity provisions that would probably not cover dog parks. Under General Obligations Law 9-103, an owner of land has no duty to keep premises safe where the owner allows entry to others to train dogs, except where certain conditions apply, including a “willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity.” A dangerous activity might include a history of dog bite incidents. Also, the New York statute does not extend its protection beyond the party to whom the owner extends permission. Thus, an incorporated dog park group using city land might still be liable.

Oregon’s recreational use immunity statute (ORS 105.682, 105.688) specifies that the immunity applies to “paths, trails, roads, watercourses and other rights of way … that have not been improved, designed or maintained for the specific purpose of providing access for recreational purposes….” Thus, an injury resulting from negligent maintenance of a path improved to provide access might still lead to landowner liability.

In Hatfield v. Penn Township, 12 A.3d 482 (2010), appeal denied 2011 Pa. LEXIS 1693 (July 27, 2011), Alice Hatfield fell and fractured her right ankle and left elbow when she stepped in a hole in a grass and dirt area between two softball fields. The trial court held Penn Township immune from liability under Pennsylvania’s Recreational Use of Land and Water Act (68 P.S. 477-1 – 477-8). The appellate court said that the purpose of this Act was to provide immunity to landowners as an incentive to them in exchange for their tolerance of public access to their lands for recreational pursuits.” It was “not intended to insulate owners of fully developed recreational facilities from the normal duty of maintaining their property in a manner consistent with the property's designated and intended use by the public.” The court concluded that the Act did not insulate the Township from liability since the area where the plaintiff slipped and fell was “a highly developed recreational park.” Since most dog parks will, under such an analysis, be “highly developed,” it seems unlikely that a court following the Hatfield logic would hold a town immune from negligence in the maintenance of a dog park.

In a case arising in Arizona, Armenta v. City of Casa Grande, 2 CA-CV 2000-0138, an injury from a crossbar on a soccer field that fell on a child trying to touch it while riding under it on a bicycle resulted in a lawsuit against Casa Grande. The appellate court determined that installing the goal did not change the park’s recreational character, and the fact that the crossbar was not properly welded, was not enough to make it an attractive nuisance. The city was granted summary judgment. Arizona’s recreational or educational immunity statute, ARS 33-1551, does, however, allow for liability for “willful, malicious or grossly negligent conduct that was the direct cause of the injury to the recreational or educational user.”

In Davis v. State, 144 Wn.2d 612, 20 P.3d 460 (2001), the Washington State Supreme Court interpreted the statutory exception to liability for a “known dangerous artificial latent condition,” where warning signs have not been conspicuously posted (RCW 4.24.210). This court said that all four adjectives had to apply. It is not clear how far this could extend to an injury at a dog park. A fall from some poor landscaping could fit within the definition, but arguably so could a dog bite.

Membership or Permit Requirements

Some public dog parks are beginning to require permits or that users become members of a park organization. A permit for a Chicago dog park will require that a veterinarian provide a user with proof of vaccination for distemper, hepatitis, parainfluenza, parvovirus, bordetella, and leptospirosis. Failure to have a valid permit and registration tag is to be penalized, and after three violations can result in a fine of $1,000 and imprisonment of up to six months. (Administrator, Cook County Department of Animal and Rabies Control, Regulation VIII on the operation of dog friendly areas (DFAs),issued under authority of § 20-15, Cook County Animal and Rabies Control Ordinance).

The NOLA City Bark, a dog park in New Orleans, requires that prospective users fill out a two-page application with identifying and contact information on the handler and vaccination and registration information on the handler’s dogs. The applicant must sign a “release and waiver of liability and assumption of risk,” and agree to abide by a list of rules. Users are issued an electronic card which they swipe to enter the facility, though once inside, the park is policed by users. If a dog becomes aggressive, the card system can be checked to determine who entered the park around the time of the incident.

Disputes Between Cities

Putting a dog park on the boundary with another city can lead to a dispute between cities, as happened in an Ohio case. In July 2007, the city of Rocky River filed a nuisance complaint against the city of Lakewood, seeking an injunction against the operation of Lakewood’s dog park. The dog park opened in 2005 and allowed owners to let dogs run off-leash. The park was less than 400 feet from Rocky River. Nearby Rocky River residents began to complain of loud barking, foul odors, and biting. The trial court granted Lakewood’s motion to dismiss on sovereign immunity grounds.

The Ohio Court of Appeals held that sovereign immunity does not apply to injunctive relief, only to money damages, and held that the trial court erred. The case was reversed and remanded. The decision is wholly procedural. Rocky River v. Lakewood, 2008 WL 5191383 (Ct. App. 2008)

Advertising Dog Grooming Near a Dog Park

An unusual case occurred in Virginia where a dog grooming facility was adjacent to a dog park. Wag More Dogs, LLC, a daycare, boarding, and grooming facility in Arlington, Virginia, had its business next to a place known as the Shirlington Dog Park to residents of the area. Wag More Dogs had a mural painted by a local artist, Mark Gutierrez, on the rear cinder-block wall of its building specifically hoping to draw clients from dog owners who used the Shirlington dog park. Unfortunately for Wag More, the sign violated zoning restrictions on business signs. Because of the violation, the county zoning administrator precluded a final building inspection of the facility that Wag More had been renovating. Wag More covered the mural with a tarp, and the restriction on the building permit was lifted, resulting in a temporary certificate of occupancy.

Wag More sued, alleging that the zoning restrictions violated Wag More’s First Amendment rights. The federal district court determined that the zoning regulations were constitutional, noting they were content neutral and only restricted commercial speech. Though Wag More lost the case, the court acknowledged that as murals go, Wag More’s was “ a relatively attractive one,” that patrons of the dog park rather enjoyed. The court said that if it were reduced to 60 square feet in size, the zoning commission would “likely have no concern with it.” Thus, cropping the mural would seem to be the solution. The photograph of the mural from the decision is shown here. Wag More Dogs, LLC v. Artman, 2011 WL 652473 (E.D. Va. 2011)

Conclusion

Our friend Ronald Keats believes that a very interesting sociological treatise could be written about the politics of dog parks in New York City. One of the authors (John) has been visiting dog parks in the Phoenix area for a number of years, where a very different sociology appears to obtain. The other author (Fran) has been instrumental in developing a dog park for Woodstock, New York, and is painfully aware of the politics behind the creation of a dog park, even in a supposedly liberal and largely dog-friendly community.

Dog parks involve all areas of law—crimes, torts, contracts, governmental authority, on and on. That there are gaps in the spectrum of law when it comes to dog parks is only an indication that this cultural and social phenomenon has existed in most places in the United States for a decade or so. Cultural and social conflicts and constructs will eventually produce more complete and more complex patterns of law, as has always been true of any social development.

This blog was written by John Ensminger and Fran Breitkopf. Thanks to Kingsbury Parker and Ronald Keats for information and suggestions.

Additional Sources: For a collection of dog park rules, see the website of the Houston Dog Park Association, linking to a rules of a number of Texas municipalities. The cartoon appeared in James Thurber's book, Thurber's Dogs, Simon and Schuster, New York, 1955.

Request for Information. We’re going to be drafting some model laws regarding dog parks. If you’re associated with a dog park that has had to deal with an unusual situation, or that has drafted ordinances that are different from those developed by the District of Columbia below, please drop a line to Fran (brightrose22@yahoo.com) or John (jensminger@msn.com). We would be most appreciative.

Appendix. District of Columbia Municipal Regulations, Chapter 7 of Title 19 (Amusements, Parks and Recreations), regarding dog parks is reproduced here in full:

730 Statement of Purpose

731 Dog Parks: General Provisions

732 Dog Parks: Application Process

733 Dog Parks: Site Guidelines and Specifications

734 Dog Parks: Complaints and Enforcement

735 Dog Parks: Operation Rules

799 Definitions

New sections numbered 730 through 735 are added to read as follows:

730 STATEMENT OF PURPOSE

730.1 The District of Columbia's Department of Parks and Recreation herein provides guidelines and rules for the application, development and operation of neighborhood fenced-in, off-leash dog parks

730.2 In October 2005, the Council of the District of Columbia unanimously passed legislation amending the Animal Control Act of 1979, effective October 18, 1979 (D.C. Law 3-30; D.C. Official Code 8-1801 et seq.)(2001) which authorized the Mayor to create fenced-in, off-leash dog parks. The Council recognized that a significant and growing portion of residents needed safe places to recreate and exercise together with their dogs. The creation of dog parks in the District of Columbia requires a certain degree of flexibility, due to the density of buildings as well as the scarcity of District-owned parkland. Successful dog parks require partnerships with the community that enhance and protect the character of the neighborhood and accommodate changing needs.

731 DOG PARKS: GENERAL PROVISIONS

731.1 The Director may establish and maintain areas on District-owned parkland designated for use as dog parks.

731.2 No person shall establish a dog park or charge a fee for use of a dog park on District-owned property without prior approval from the Department.

731.3 No person shall use a dog park for any commercial purpose, however this provision does not apply to dog walkers handling 3 or less registered dogs.

731.4 A dog park shall be open seven (7) days per week during the posted hours for any Department park, except as provided by section 731.5.

731.5 A dog park with lighting shall not remain open later than 10 p.m.

731.6 The Director shall post a notice of a planned dog park closing at each entrance not less than seven (7) days before the period of closure, stating the reasons for the closure. In the case of an emergency, the Director shall post a notice as soon as practicable, and the notice shall state that closure is for emergency reasons.

731.7 All dog parks shall be enclosed by appropriate fencing that is at least five (5) feet in height and includes a double-gated entryway area.

731.8 All handlers use dog parks at their own risk. Neither the District of Columbia or its agencies nor the sponsoring dog park group shall be liable for any injury or damage caused in the dog park.

732 DOG PARKS: APPLICATION PROCESS

732.1 Each dog park shall be sponsored by a dog park group, which shall share responsibilities with the Department for the maintenance, management and enforcement of the site. The dog park group must designate one bona fide District resident to act as primary contact with the Department.

732.2 A dog park group shall contact the Department regarding a proposed location for a dog park, and the Department shall conduct a preliminary review to determine ownership of the proposed site.

732.3 After the Department determines that the proposed dog park is available District-owned parkland, the sponsoring group must submit a formal proposal to the Department stating the reasons for establishing a dog park in the neighborhood. The application shall include letters and/or petitions of support from adjoining Advisory Neighborhood Commissions (ANCs) or other individuals and entities.

732.4 All applications for dog parks shall be noticed in the D.C. Register for a 30 day public comment period and reviewed by a standing committee appointed by the Director, the Dog Park Application Review Committee (DPARC), comprised of the following: (1) the Director or his or her designee from the Department; (2) a representative from the Department of the Environment; (3) a representative from the Department of Health/Animal Control Division; (4) a veterinarian active in canine health in the District of Columbia or a recognized canine behaviorist; (5) a representative from a recognized animal shelter or animal welfare organization located within the District of Columbia; and (6) four representatives from the community, two of whom shall be from sponsoring dog park groups of existing or potential dog parks. Non-agency members of DPARC are appointed by the Director with input from sponsoring dog park groups. DPARC members are not paid and shall serve for two years, but may be reappointed.

732.5 The DPARC shall review and evaluate all applications and make recommendations in writing to the Director within thirty (30) days of the submission of the application. The Director shall consider the application, DPARC recommendation and comments received during the 30 day comment period and respond in writing to the applicant and appropriate ANC within thirty (30) days of receiving the recommendation.

732.6 The Department has three courses of action concerning the review and evaluation of applications. It may:

(a) Accept the application as submitted;

(b) Accept the application provisionally based on modifications to be made; or

(c) Reject the proposal with a detailed explanation.

732.7 If an application is rejected, the dog park group may re-apply to mitigate any defects in the application. If the application is rejected again, the Department may provide assistance in finding suitable alternatives.

732.8 If an application is accepted, the Department and the dog park group shall enter into a Memorandum of Agreement (MOA) regarding financing, roles and responsibilities with respect to the dog park. The Department shall have primary financial responsibility for constructing and maintaining the park, and the dog park group shall have primary responsibility for daily management of the park.

733 DOG PARKS: SITE GUIDELINES AND SPECIFICATIONS

733.1 A dog park shall be no less than five thousand square feet (5,000 sq. ft.) in area where feasible, unless parkland availability in certain neighborhoods precludes meeting this guideline. Triangle parks or other areas of less than five thousand square feet (5,000 sq. ft.) may be considered.

733.2 Best management practices shall be implemented wherever feasible to preserve the surrounding environment. A dog park shall be established according to the following environmental guidelines:

(a) A dog park shall be located on well-drained land to prevent soil erosion with a maximum slope of 20%;

(b) A dog park shall sit at least 50 feet from surface waters that drain into the Potomac and Anacostia Rivers and Rock Creek;

(c) A dog park shall be located near a water supply line for drinking-fountain and maintenance purposes; and

(d) A dog park shall have a surface type that allows for positive drainage away from the site and that helps mitigate waste management issues.

733.3 A dog park shall comply with all codes and regulations as they apply to the Americans with Disabilities Act of 1990, the Clean Water Act (Federal Water Pollution Control Act of 1972), the D.C. Water Pollution Control Act of 1984, and DPR Standards.

733.4 A dog park shall be established on under-utilized land where possible. If such land is not available in a neighborhood where there is a demonstrated need for a dog park, the Director may consider other options about park space, including but not limited to time-sharing arrangements with other park users.

733.5 The Director shall not approve sites deemed unsuitable for dog parks, which shall be determined on a case-by case basis and may include:

(a) Areas designated specifically as playgrounds or children's play areas;

(b) Athletic fields and courts;

(c) Sensitive habitat areas or wildlife areas determined by the District Department of the Environment (DDOE); and

(d) Areas directly upslope from a community garden.

733.6 Each dog park shall have permanent signs, posted in English and Spanish, stating the hours of operation, rules, and regulations for the dog park, and contact information for the Department.

734 DOG PARKS: COMPLAINTS AND ENFORCEMENT

734.1 All complaints or concerns regarding a specific dog park shall be directed to the sponsoring dog park group for resolution. If, after thirty (30) days, the complaint or concern has not been resolved satisfactorily by the sponsor, the complainant and sponsor shall meet with the Director or his or her designee to mediate a solution.

734.2 If the Department or the sponsoring dog park group determines that a dog park is not being managed or maintained properly, potential solutions shall be developed and agreed upon by all parties. Failure to implement the solutions may result in revocation of the dog park group's sponsorship and temporary or permanent closure of the dog park by the Director.

734.3 Sponsoring dog park groups are primarily responsible for enforcement of the operating rules, but may seek the assistance and authority of the Department or other appropriate agencies of the District of Columbia.

735 DOG PARKS: OPERATING RULES

735.1 Each dog park shall have a carrying capacity of one dog per 450 square feet, and the number of dogs allowed in the dog park at any one time shall be posted. Handlers are expected to enforce the carrying capacity to prevent conflicts due to overcrowding and detriment to the environment. When carrying capacity is reached, handlers shall limit their stay to thirty (30) minutes when others are waiting.

735.2 Each handler shall comply with all animal control, dangerous dog and communicable disease laws and regulations before entering a dog exercise area with a dog.

735.3 A handler shall be sixteen (16) years of age or older.

735.4 A child under sixteen (16) years of age may enter a dog park only when accompanied and supervised by an adult.

735.5 A handler shall ensure that each dog within his or her control is wearing a current vaccination and registration tag in a dog park, as well as a current dog park registration tag obtained from the Department of Health Animal Control Division.

735.6 A handler shall leash each dog within his or her control until entering and upon exiting the dog park. To prevent conflicts, a handler shall keep his or her dog off-leash in the dog park, unless no other dogs are present.

735.7 A handler shall collect and bag all solid waste from his or her dog and dispose of it in the designated on-site receptacle in the dog park.

735.8 A handler shall accompany, maintain visual contact, and have voice control over his or her dog(s) at all times.

735.9 A handler shall not have more than three (3) dogs in a dog park at any one time.

735.10 A handler shall not have a dog that is less than four (4) months old in a dog park.

735.11 A handler shall not have a female dog that is in heat in the dog park.

735.12 A handler shall not use a spike or choke collar on a dog in the dog park.

735.13 A handler shall immediately leash and remove from a dog park his or her aggressive dog.

735.14 A handler shall not have a dog designated as a dangerous dog or a potentially dangerous dog in the dog park.

735.15 A handler shall control excessive barking.

735.16 A handler shall report all animal bites to the Department of Health within twenty-four (24) hours in accordance with communicable disease laws.

Section 799 is amended by adding the following definitions:

Aggressive Dog

* a dog whose behavior is characterized by unprovoked snarling, growling, or attack posture. *

Dangerous Dog

* as defined in Section 2 of the Dangerous Dog Amendment Act of 1988 (D.C. Law 7-176), a dog that has bitten or attacked a person or domestic animal without provocation; or, in a menacing manner, approaches without provocation any person or domestic animal as if to attack, or has demonstrated a propensity to attack without provocation or otherwise to endanger the safety of human beings or domestic animals.

Department

* the Department of Parks and Recreation.

Director -

* the Director of the Department of Parks and Recreation.

District -

* the District of Columbia.

Dog Park

* also known as a dog exercise area; area within District-owned property designated for dog exercise where dogs are allowed off-leash without being considered at-large.

Dog Park Group

* identifiable non-profit or community group, such as an official dog group, Park Partner or Friends of Group, who applies to sponsor a dog park and shares responsibilities with the Department of Parks and Recreation in park operations and management.

Dog Park Registration Tag

* Positive District of Columbia government issued identification that must be worn at all times by each dog using a dog park.

Handler -

* a person in control of a dog who is personally and legally responsible for the dog at all times while using a dog park.

Maintenance

* The activities required to ensure that the dog park is in a state of repair and efficiency at all times as more clearly defined in DPR Dog Park Standards. *

Management

* The day to day oversight of the dog park to insure that all posted rules and DPR Standards are adhered to. *

Enforcement

* The activities required to ensure that General Provisions and Operating Rules provided herein, and DPR standards are adhered to.

Potentially Dangerous

* Dog - a dog that poses a threat to public safety by causing an injury to a person or domestic animal without provocation that is less severe than a serious injury, engaging in encouraged dog fighting, or running at large three (3) or more times within any 12-month period.

Sensitive Habitat Area

* an area highly prone to erosion or the natural habitat of locally important, rare, threatened or endangered species of plan or wildlife as determined by the District Department of the Environment (DDOE).

Read More