New Army Policy Stymies Efforts of Returning Soldiers to Get and Keep Service and Support Animals

On January 30, the Army Medical Command at Fort Sam Houston, Texas, issued a memorandum to provide guidance on the use of service animals, animal assisted therapies, and animal assisted activities in healthcare settings. The memo applies to “all medical treatment facilities (MTF) using animals in healthcare setting (Service Dog programs, Animal Assisted Therapies (AAT) and Animal Assisted Activities (AAA).”

The memo is not just medical or institutional in its applicability, however, since it also specifies that it applies to “recovering service members, Warriors in Transition, eligible members with disabilities, and all other applicable beneficiaries treated within Army MTFs [family members of active duty personnel, etc.], regardless of component or duty status.” The concluding phrase means that just about anyone in the Army with any condition being treated is covered by the policy. The policy memo states that policies and procedures are to be established by local commanders “that are commensurate with this memorandum.” It thus appears that some variation in the application of the policy may be acceptable, and the recent reports about Fort Bliss may not be found at other military bases. (Since this blog was originally posted this morning, I have been advised that there have also been incidents at Fort Carson, Colorado, and Fort Benning, Georgia.)

The “proponent” of the policy is the Chief, Clinical Services Division, Office of the Assistant Chief of Staff for Health Policy and Services. This position is filled by, and the memo is signed by, Herbert A. Coley, who holds a Masters in Health Administration from Baylor University.

The effect of the policy memo is to limit the availability of service animals to returning soldiers and other military personnel by making the process of obtaining a service dog overly complicated and burdensome, as well as severely restricting the channels through which service animals can be obtained. There are many people now trying to help soldiers returning from war zones to obtain service animals to help them deal with physical and psychological injuries, and their efforts are already being made more difficult because of this policy memo.

Defining Service Animals

The memo appropriately begins with a definition of “service animals/service dogs,” stating:

“As defined by 42 USCS §§ 12101 et seq., a service animal is “any dog (the Americans with Disabilities Act [ADA] specifically defines service ‘animals’ as ‘dogs’) that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”

The definition is correct, but is taken from a regulation (without the parenthetical), not the U.S. Code. The full definition is perhaps worth considering:

“Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual’s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.” (28 CFR 36.104)

The policy memo specifically cites the italicized language in the last sentence of the definition. It is to be noted, however, that the Department of Justice contemplates service dogs, not just emotional support animals, for individuals suffering from PTSD, noting in the preamble to the above regulation (75 Fed. Reg. 56269) that tasks performed by psychiatric service animals include “providing safety checks or room searches for persons with PTSD.”

Applicability of Americans with Disabilities Act

The memo states that neither the federal government nor the Army are covered under the regulations issued with regard to service animals, but insists that “it is the commander’s intent that MEDCOM facilities abide by these provisions to as great a degree as is practicable and when such adherence does not hamper readiness.”

The memo then states that designating a dog as a “service animal” or “service dog” has “significant implications.” It should be noted that the ADA regulations, though specifying that service animals are dogs, did not adopt the term “service dog” to replace “service animal.” This may be due to the fact that the Department of Justice recognizes that certain miniature horses perform guide functions, much like guide dogs, and though not labeling them service animals, the Department has provided for their being treated in most respects as service animals and may ultimately designate them as such in a future revision of its regulations.

The significant implications of a service animal designation are then specified in the Army memo:

(a) It invokes the protections of the ADA, as well as the rights of access to public buildings and programs conferred by federal statute. Within the MEDCOM, it is the commander's intent that such access include (but not be limited to) hospitals, treatment facilities, recreational facilities, barracks, and other structures.
(b) It implies that the individual (service member or beneficiary) maintains possession of the dog, which has been "individually (specifically) trained" to assist with the needs of that particular individual. Therapy animals and activity animals remain within the possession of therapists, providers, and third-party owners; animals that do not meet the definition of a "Service Animal" yet remain in the possession of an individual service member or beneficiary are defined as "Companion Animals" or "Pets" for purposes of this policy.
(c) Individuals requiring a Service Dog generally are expected to require such dog for an extended period of time (typically for life). Such a requirement renders a service member non-deployable.

The first paragraph would seem to mean that access rules for service animals would apply to health care facilities, barracks, and anywhere else. So far so good.

The second paragraph (b) is more problematic. The second sentence refers to therapy animals and activity animals that “remain within the possession of therapists, providers, and third-party owners.” These are not service animals. From my own experience with a therapy dog, I am aware that the ADA does not require that a hospital admit me with Chloe, though most are more than happy to do so. Later paragraphs in the memo elaborate on therapy animals and animal-assisted therapy, but I will not discuss this category further.

The last sentence in (b) is arguably correct, but neglects to consider that emotional support animals under certain circumstances, such as housing situations under the Department of Housing and Urban Development, entitle their owners to access rights that would not apply to pets. A later paragraph provides a comprehensive definition of “companion animals, emotional support animals, pets” and states that these do not meet the definition of a service animal and that the “terms are synonymous for the purposes of this memorandum.” Thus, the fact that the Department of Housing and Urban Development and the Department of Transportation separate emotional support animals from pets is ignored. (The Fair Housing Act applies to off-base housing, so presumably some Army commanders are familiar with its requirements.)

The third paragraph (c) appears to be a military decision. One would not expect service members with service animals to be deployed for combat duty, but it is not clear that service members could not perform many responsibilities despite having service animals. That is a major reason for the ADA rules on service animals in the first place.

The policy memo also defines “service-dogs-in-training” as dogs “undergoing a period of training designed to lead to their ultimate employment as Service Animals.” The memo provides that service-dogs-in-training “may be granted access to barracks facilities associated with MTFs on a case-by-case basis in order to facilitate goal-oriented therapy for Warriors anticipating discharge.”

Responsibilities of Regional Medical Commands

The policy provides that medical treatment facilities are to establish and monitor policies regarding the use of animals, and to “[m]onitor and track service animal employment.” Data is to be collected “in order to gauge the effectiveness of animals on patients’ quality of life and therapeutic success.” MTFs are to quantify the demand for service, AAT, and AAA animals, and also record complaints regarding animal behavior. They are to record the “disposition of service members following prescription of a service dog (discharge from or retained on active duty).” It is not clear if this is deemed consistent with the prior non-deployment language for individuals with service animals.

Veterinary Care

The policy memo provides that the U.S. Army Public Health Command is to provide “authorized veterinary care for privately-owned service dogs in accordance with (IAW) AR 40-905.” Army Regulation 40-905 lists authorized veterinary health services for, among other animals, Military Working Dogs and Military Working Horses. It is not clear whether a service member with a dog that was obtained without going through the Army’s procedures could get any assistance for the animal, but given the tone of the memo, this does not appear to be assured.

Service Dogs for Active Duty Service Members
For service members on active duty, command approval is necessary to obtain a service dog. In the PULHES categories (an acronym for: Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Psychiatric (military physical profile)), an active duty service member must have a Permanent 3 profile. Thus, the individual must have “significant defect(s) or disease(s) under good control, not requiring regular and close medical support,” and more importantly, “capable of all basic work commensurate with grade and position.” Again, deployment of some sort seems possible.

The Army wants to make it clear that personnel cannot judge for themselves that they need a service animal, stating:

“Further suitability of an eligible beneficiary for a Service Dog will be determined by a multi-disciplinary team (MDT) led by the beneficiary's primary care manager (PCM). This team would ideally include other healthcare professionals such as (but not limited to) behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and WTU staff.”

The multi-disciplinary team is to consider “whether a Service Dog would likely mitigate a specific disability.” If this determination is made, the “beneficiary” is to be referred to “an accredited service animal provider.” The primary care manager is to prescribe the service dog for the service member.

Obtaining a Service Dog

To get a service dog, an eligible service member—i.e., one who meets the qualifications and has gone through the procedures described in the previous paragraphs—must receive orientation and training from “approved providing/procurement organizations prior to taking possession of a Service Dog.”

The U.S. Army Medical Command is not responsible for getting service dogs for service members, but the policy memo requires that they may be obtained from “accredited private service animals organizations,” which are those approved by the International Guide Dog Federation as to guide dogs, and Assistance Dogs International, as to other “service, assistance, or alert dogs.” One wonders what policy justification can be given for insisting that the Army will not supply service animals, yet also insisting that a channel inadequate to supply enough animals be used.

Injured Service Members Training Service Animals

The policy memo acknowledges that injured service members “may realize therapeutic benefit from the human-animal bond formed in the training of animals to provide services to others.” This is acceptable if part of a service member’s treatment plan. As to training one’s own animal, the memo states:

“MEDCOM requires that Service Dogs be trained by relevant licensed entities. MEDCOM does not authorize, nor will it reimburse any service member or beneficiary for the costs incurred in training his/her own animal.”

Training standards are those established by Assistance Dogs International. As will be discussed below, the italicized language is inconsistent with ADA policies of the Department of Justice.

Animals in Medical Treatment Facilities

For service dogs in medical treatment facilities, the owner/handler is responsible for care, including veterinary care, feeding, watering, exercising, toileting, and waste removal for the dog. Service dogs are to wear a special vest or harness identifying them as service animals. Owner/handlers must maintain proof of certification, as well as documentation of immunization. Personnel of medical facilities can “request such documentation from owner/handlers as a condition of their entry into healthcare facilities.”

“Service Dogs will remain on leash and under the direct control of the owner/handler at all times with the exception that another person may be designated to care for a Service Dog when the owner/handler must enter a portion of the MTF where the health of other patients might be compromised by the animal's presence or where service animals are otherwise unauthorized.”

Service animals may accompany individuals visiting patients, but “the ward staff, patient, and any roommate(s), if applicable, must all grant permission” for the visit.

Warriors in Transition

There are specific policy requirements for Warriors in Transition:

“Service Dogs will not be issued to Warriors until they have achieved sufficient level of independence to reside off post in private housing. On a case by case basis, a Warrior's MDT may approve the Warrior to begin training with a service dog while residing at a Warrior Transition Battalion (WTB)IWTU in coordination with the WTB Command and the non-governmental organization providing the training.”

Service dogs cannot reside with Warriors in Transition assigned to the Warrior Transition Unit of a medical treatment facility.

VA Proposed Rules

Rules proposed by the Veterans Administration were published in the Federal Register on June 16 (76 Fed. Reg. 35162), and as of this writing have not been finalized. Those proposed rules provided something of a model for the Army’s policy, including restricting recognition of service dogs to those trained by the International Guide Dog Federation and Assistance Dogs International. Many defects to those rules were pointed out by commenters (I commented myself, as well as writing a blog on the VA release), but their damage was, at least in one sense, fairly limited. The VA’s proposal had to do with what dogs would be funded by the agency, and specified that only about 100 a year would receive VA funds, perhaps the majority of which would be guide dogs. Although not a good outlook, the VA’s rules did not preclude a veteran from getting a service dog from other sources, or from getting financial assistance from other sources.

The Army policy, however, gives Army commanders the authority to restrict access of service dogs if medical personnel have not approved the assignment of a service dog to the service member, and to restrict the sources from which a service member can obtain a dog. Given the massive need for service dogs particularly for soldiers returning from war fronts with PTSD, the Army policy is already wreaking havoc at Fort Bliss, where news reports have described soldiers forced to move out of barracks because the base does not recognize their need for a service dog, or does not recognize that the dog a soldier has is in fact a service dog because of how it was trained or who trained it.

Although I believe the VA policy is not well designed, it has something of the nature of an accounting decision to set a priority on a particular source to provide a specific item, with the priority justified by the fact that very limited funds are being made available. Here, the issue is not primarily funding, and a soldier who uses his own funds, or receives help from someone else, is being penalized for trying to satisfy a need outside of official channels when the official channels are woefully inadequate to assist in satisfying that need.

It is also to be noted that the VA proposes a mechanism by which someone who has obtained a service animal outside of the channels proposed by the regulations could nevertheless get the animal qualified by having some additional training or testing. No such mechanism appears to be offered by the Army.

Department of Justice Perspectives

The policy memo’s statement that “it is the commander’s intent that MEDCOM facilities abide by these provisions [Americans with Disabilities Act] to as great a degree as is practicable and when such adherence does not hamper readiness,” is made ridiculous by the policy that is actually outlined by the Army. With the VA’s 2011 proposed rules I was not certain whether the agency failed to analyze and understand the ADA service animal rules issued by the Department of Justice, or simply decided that they were overly complex when making limited funding decisions. With the Army, the VA’s limited understanding has been magnified into a horribly inappropriate Catch 22 quagmire from which soldiers returning from Iraq and Afghanistan will be unable to extricate themselves without a great deal of effort and a not inconsiderable amount of luck.

Several passages in the preamble to the Department of Justice regulations (75 Fed. Reg. 56722) covering service animals are worth noting:

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

The Army has gone contrary to this flexible approach by limiting service members’ access to service animals to member organizations of two umbrella groups and precluding the possibility of service members training their own service animals. The policy memo also fails to consider that there are many highly qualified training organizations and individuals that are either for-profit or simply not members of the umbrella groups, which can be due to many reasons, yet trainers in such businesses and organizations, or volunteers doing this work because they believe in it, will not be able to help service members seeking service dogs.

Another passage in the same preamble is also important:

“The Department recognizes that there are situations not governed by the title II and title III regulations, particularly in the context of residential settings and transportation, where there may be a legal obligation to permit the use of animals that do not qualify as service animals under the ADA, but whose presence nonetheless provides necessary emotional support to persons with disabilities.”

This has also been ignored by the Army. Although an emotional support animal may not be appropriate in certain military operational settings, it is unclear why military barracks, hospitals, and other environments could not allow dogs providing emotional support that are not trained to the level of service animals.

PTSD

An emotional support animal for someone with PTSD would not be the same as a trained service animal for someone with PTSD. It is not at all clear whether the Army understands the distinction. PTSD is not mentioned in the policy memo at all. The Department of Justice, on the other hand, did discuss this difference in the preamble to its final rules:

“Many commenters requested that the Department carve out an exception that permits current or former members of the military to use emotional support animals. They asserted that a significant number of service members returning from active combat duty have adjustment difficulties due to combat, sexual assault, or other traumatic experiences while on active duty. Commenters noted that some current or former members of the military service have been prescribed animals for conditions such as PTSD. One commenter stated that service women who were sexually assaulted while in the military use emotional support animals to help them feel safe enough to step outside their homes. The Department recognizes that many current and former members of the military have disabilities as a result of service-related injuries that may require emotional support and that such individuals can benefit from the use of an emotional support animal and could use such animal in their home under the FHAct [Fair Housing Act].”

The Department of Justice stated separately that tasks performed by psychiatric service animals may include “providing safety checks or room searches for persons with PTSD.” Further:

“Commenters stated that there appears to be a broadly held misconception that aggression-trained animals are appropriate service animals for persons with post traumatic stress disorder (PTSD). While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression but could include actively cuing the handler by nudging or pawing the handler to alert to the onset of an episode and removing the individual from the anxiety-provoking environment.”

One wonders if the individuals behind the Army’s policy memo are among those with such misconceptions about service animals for persons with PTSD.

Conclusion

The Army’s service dog policy memo is ill-considered and poorly drafted. On its face, it will continue to apply until early 2014, during which time countless more returning soldiers and service members will find their efforts to temper the effects of PTSD stymied by the Army’s restrictive attitude as to who can have a service animal and who can provide one.

Although the Army is not covered by the Americans with Disabilities Act, it appears to feel that ADA policies should be implemented to the extent practicable. The drafters of the policy memo, however, have paid only lip service to ADA concepts, in the end setting up so many roadblocks that many injured and traumatized service members will not be able to obtain service animals in any reasonable time frame, and probably in many cases not at all.

Sources:
1. Department of the Army, Headquarters, United States Army Medical Command, Fort Sam Houston, Texas: MCHO-CL-C, OTSG/MEDCOM Policy Memo 12-005, January 30, 2012 (to expire January 30, 2014).
2. Department of Veterans Affairs, Proposed Rule: Service Dogs, 28 CFR Part 17, 76 Fed. Reg. 35162 (June 16, 2011).
3. Debbie Kandoll. Simplified Explanation of Army’s New Service Dog Policy.
4. An ABC affiliate station, KVIA in El Paso, Texas, has been following incidents arising from the implementation of the Army service dog policy at Fort Bliss, straddling the Texas/New Mexico border.

Thanks to Jan Moury for providing materials used in drafting this blog. Thanks to Debbie Kandoll and Joan Esnayra for corrections and suggested revisions. The Psychiatric Service Dog Society has provided detailed talking points for those affected by the policy.

Additional Note. The link in the first comment below to 28 CFR Part 35 concerns state and local governments. It would apply to state and local agencies that service members might deal with, but not the Army. I also received a request for information on emotional support animals in housing law. See particularly the prior blog on tenants with PTSD, and links therein, including Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.

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Another Pit Bull Tragedy

In a scene that belongs in an episode of Southland, a 911 caller mistakenly informed the police that a neighbor’s house was being burglarized, which resulted in a young man’s pit bull being shot by the police when they arrived.

Pit bulls are wonderful dogs, but they come with risks. Being large-jawed, they are more capable than many breeds of doing damage with their bites, though no more so than Great Danes, which have obtained the image of gentle giants from Scooby-Doo and Marmaduke but which a century ago, as I have discussed here before, had a bad reputation for aggression. (Petey of the Little Rascals did not remain sufficiently in American consciousness to dominate the image of the breed.) As with any dog, pit bulls can be trained, and often are as calm as dogs can be, but people assume they are vicious because they have become popular with gangs and other unpopular members of American society.

A Burglary That Wasn’t

In Sandoval v. Las Vegas Metropolitan Police Department, 2012 WL 607283 (D.C. Nev. 2012), a 911 call alerted Las Vegas police to prowlers and a possible burglary. Before police arrived, one of the suspected burglars jumped over a fence and was picked up by a maroon SUV. Sergeant Jay Roberts arrived and interviewed the caller, who pointed out the house where he thought there might have been a burglary.

Officer Michael Dunn arrived and Sergeant Roberts told him to cover the back of the home. They were concerned that the burglary might still be in progress. In the words of the court:

“As Sergeant Roberts approached the window to the home with his gun drawn in the low-ready position, he observed three young males moving around in the room…. Unknown to the officers, the three males were Henry and his friends Jordhy Leal and David Madueno, whom Henry had invited over to play video games, watch television, and listen to music.”

Roberts thought the three men might be ransacking the room. He pointed his weapon towards the bedroom window and shouted: “Metro Police, put your hands up.” Officer Dunn entered the home through a sliding door, where he also gave verbal commands to the three young men.

Whether it should have been obvious that the young men were not burglars was not considered by the court, which continued with its description of the events:

“Before complying with the command, Henry told Sergeant Roberts that he had to take care of his dog (a pit bull) who was in the room with them, but was instructed to open the front door. As the suspects exited the room, the dog ran past the young men and lunged at Officer Dunn. When the dog was less than two feet away from Officer Dunn and about one foot from David, Officer Dunn shot the dog in the face. Officer Dunn reported the shooting over the radio and requested animal control. Henry grabbed the dog and Officer Dunn ordered Jordhy and David to get on the ground. Jordhy and David were handcuffed and led outside along with Henry, who was holding the pit bull. While leading the young men outside, the officers inquired as to who they were and why they were on the property. Jordhy and David were sat down on the front lawn for forty minutes while Henry remained with the dog. Henry was understandably upset that his dog had been shot and repeatedly screamed at the officers, “why the fuck they shoot my dog.’” (The version of the order released by the court deleted all but the first letter of the expletive in the last sentence.)

It should be noted at this point that Henry asked for a chance to control his dog, but the officers apparently felt that exigent circumstances precluded any delay to their entry.

Henry was allowed to call his father, Sandoval. When Sandoval arrived he saw the blood on his son, but assumed he had been shot, not realizing the blood was from the dog. Sandoval was pushed against a police car and handcuffed. He began screaming for his medicine, which he needed because of his recent surgery, but got no help for 25 to 30 minutes.

Animal control “eventually arrived on the scene and Henry ran towards the truck and put the dog inside.” Henry remained agitated and was handcuffed and put in the back of a patrol car. He was later released and told to stand behind the yellow tape with his family.

The dog died of its injuries. No one of the family was ever charged or cited for a crime.

Suit Against Las Vegas Police
Sandoval and other people involved filed a complaint with the Las Vegas Metropolitan Police Department for violations of civil rights, excessive force, municipal liability, assault and battery, and false imprisonment. Defendants filed a motion for summary judgment, arguing there was no genuine dispute as to any material fact and that they were entitled to qualified immunity.

The court found that the officers reasonably believed that the three men were committing a burglary. As to shooting the dog, the court stated:

“Upon entering the home, the family pit bull charged at Officer Dunn. Although Plaintiffs claim the dog had never bitten anyone in the past, Officer Dunn had no reason to know that. All that was known was that he stood before three potentially dangerous suspected burglars and a lunging pit bull.”

As to the excessive force claim for shooting the family dog, the court said:

“Plaintiffs also contend that Officer Dunn used excessive force in shooting the family dog. A dog is not a person and therefore is not entitled to protection under the Fourth Amendment. See U.S. Const. amend IV (protecting “[t]he right of the people to be secure in their persons, houses, papers, and effects”) (emphasis added); Altman v. City of High Point, N.C., 330 F.3d 194, 200 (4th Cir.2003) (holding that a dog is not a “person” under the Fourth Amendment). However, an owner may bring a claim against the government actor for violating the Fourth Amendment for an unconstitutional seizure of the owner's property if the manner in which the dog was taken or killed was unreasonable.” (transcript citations omitted)

The court determined:

“Although the loss of the animal is a significant intrusion, the pit bull was charging at Officer Dunn at the time it was shot. Officer Dunn's safety clearly outweighed the loss of the property interest Plaintiffs had in the animal. While Officer Dunn did not attempt nonlethal methods of restraining the dog before shooting, this was a rapidly evolving situation in which Officer Dunn was required to make a split second decision in how to protect himself. Such actions must be judged from the perspective of the officer at the scene rather than with the 20/20 vision of hindsight…. From Officer Dunn's perspective, a pit bull was racing toward him while he was standing before three suspected burglars who may have been noncompliant and reaching for items when Sergeant Roberts first discovered them. Based on the information available to Officer Dunn at the time, it cannot be said his actions were unreasonable.”

Because the officers acted reasonably, the court held that they were entitled to qualified immunity.

No Deprivation of "Familial Association" in Loss of Dog
The plaintiffs also asserted that “they were deprived of the right to familial association when the officers shot the family dog.” The court acknowledged that this was a traumatic event for the family, but said the “right to familial association generally only applies in parent-child relationships.”

“Although many people have close relationships with their pets, the owner-pet relationship is not a parent-child relationship. Furthermore, Plaintiffs have failed to cite any legal authority which would justify the extension of the right of familial association to relationships owners have with their animals. For these reasons, the loss of the family dog consequently does not deprive Plaintiffs' of their right to familial association.”

The court also rejected the argument that there was intentional infliction of emotional distress. Since Officer Dunn had a right to protect himself from the charging pit bull, the action was not done with the intention of causing emotional distress.

Summary judgment was granted to the defendants.

Conclusion

Holding one’s seriously injured pet while waiting at least 40 minutes for an animal control van to arrive is not something most dog owners even want to contemplate. Our hearts go out to Henry.

The court’s ruling is not unexpected, however, nor is its reasoning unsupported by general legal concepts. Courts are going to give the benefit of the doubt to the police. I would like a pit pull. I think they are beautiful dogs, but they come with this kind of risk. Be sure to think about it before getting one.

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The Dogs of Marco Polo

Lest we accept the narrative of Marco Polo’s travels too readily, perhaps it is best to begin near the end of his journey with a description of the Island of Angamanain (one of the Andaman Islands south of Burma, west of Malaysia):

“Angamanain is a very large Island. The people are without a king and are Idolaters, and no better than wild beasts. And I assure you all the men of this Island of Angamanain have heads like dogs, and teeth and eyes likewise; in fact, in the face they are all just like big mastiff dogs! They have a quantity of spices; but they are a most cruel generation, and eat everybody that they can catch, if not of their own race. They live on flesh and rice and milk, and have fruits different from any of ours.”

The first plate here is taken from Il Milione, being a record of Marco Polo’s travels as transcribed by a cellmate in Genoa and published about 1300.

It may be, as John Masefield suggested, that certain descriptions of places on the return journey across the Indian Ocean were “tales of pilots, and that his fleet put boldly out to avoid the coast pirates.” In all fairness, a series of medieval travelers to the east felt obliged to describe dog-headed or dog-faced people they generally heard about, rather than saw. Friar Odoric, visiting eastern China, heard references to dog-men and wolf-men, but describes going to the island of Nicoveran (Nicobar Islands, south of the Andaman Islands), where he saw men and women with faces like dogs. (Yule, vol. I, 1866) A fourteenth century explorer, Ibn Batuta, perhaps in Malaysia, saw men with mouths like dogs, but not the women, who were extremely beautiful.

Henry Yule looked for a rational explanation for these dog-head stories, suggesting in a note to the account of Ibn Batuta: “I take the dog’s muzzle to be only a strong way of describing the protruding lips and coarse features of one common type of Indo-Chinese face.” These accounts are perhaps better understood as fitting within a long mythology about dog-men (cynanthropics) and dog-headed men (cynocephalics) going back at least to Greek sources. As David Gordon White summarizes:

“What changes is the locus of these exotic creatures…. They are always located far away, beyond neighbors that are close enough to be known as enemies or allies, often over the last known mountain range or body of water. They always belong to another land, live under another sky, live according to other statutes (Dog-Men often cohabit and couple with gynecocratic Amazons), and speak (or bark) other tongues.”

The second plate show’s a depiction of dog-faced men from Yule’s notes on Marco Polo (citing the source only as “from a manuscript”).

The Porcupine Hunters

When visiting Keshem, a town now in Afghanistan, Polo described porcupines that were hunted with dogs, but were able to huddle close, or roll themselves up, when attacked, and shoot off their quills. Yule, in a note to Polo’s description of porcupines, finds the belief that porcupines could shoot their quills goes back to antiquity and can be found in Pliny and Aelian. Yule acknowledges, however, that porcupines will huddle and coil themselves, “for the porcupine always tries to shield its head.”

The plate shows porcupine hunting as imagined in Il Milione.

Tartars Use Dogs in Bird Hunts

Although saying that the Tartars had the best dogs in the world, Polo also says that they ate dogs (something that Polo deems worthy to note regarding various peoples he encountered or heard about). Yule, citing the accounts of other travelers than Polo, describes the Tartars using dogs to hunt ducks, geese, and swans. During their invasion of Europe in 1242, some believed the Tartars, or at least some of their followers, were dog-headed and ate human flesh.

Kublai Khan’s Great Hunts

The central figure in Polo's narrative is Kublai Khan. The emperor had two men, brothers, who kept his hounds. Their functions during a hunt are described by Polo as follows:

“The Emperor hath two Barons who are own brothers, one called Baian and the other Mingan ; and these two are styled Chimtchi (or Cunichi) which is as much as to say, ‘The Keepers of the Mastiff Dogs.’ Each of these brothers hath 10,000 men under his orders; each body of 10,000 being dressed alike, the one in red and the other in blue, and whenever they accompany the Lord to the chase, they wear this livery, in order to be recognized. Out of each body of 10,000 there are 2000 men who are each in charge of one or more great mastiffs, so that the whole number of these is very large. And when the Prince goes a-hunting, one of those Barons, with his 10,000 men and something like 5000 dogs, goes towards the right, whilst the other goes towards the left with his party in like manner. They move along, all abreast of one another, so that the whole line extends over a full day's journey, and no animal can escape them. Truly it is a glorious sight to see the working of the dogs and the huntsmen on such an occasion! And as the Lord rides a-fowling across the plains, you will see these big hounds coming tearing up, one pack after a bear, another pack after a stag, or some other beast, as it may hap, and running the game down now on this side and now on that, so that it is really a most delightful sport and spectacle.”

Although the numbers seem exaggerated, Allsen (2006, p. 97) notes the indigenous sources describe massive hunts in various parts of Asia.

The brothers, whose responsibilities did not end with the hunt, were also required to provide a thousand head of game daily to the court (not counting quails).

Polo is not the only early traveler to describe these massive hunts. Friar Odoric, visiting one of the successors of Kublai decades after Polo in the 1320s, says the following:

“When the Great Khan goes a hunting ‘tis thus ordered. At some twenty days’ journey from Cambalech, there is a fine forest of eight days’ journey in compass; and in it are such multitudes and varieties of animals as are truly wonderful. All around this forest there be keepers posted on account of the Khan, to take diligent charge thereof; and every third or fourth year he goeth with his people to this forest. On such occasions they first surround the whole forest with beaters, and let slip the dogs and the hawks trained to this sport, and then gradually closing in upon the game, they drive it to a certain fine open spot that there is in the middle of the wood. Here there becomes massed together an extraordinary multitude of wild beasts, such as lions [actually tigers, as noted by Collier], wild oxen, bears, stags, and a great variety of others, and all in a state of the greatest alarm. for there Is such a prodigious noise and uproar raised by the birds and the dogs that have been let slip into the wood, that a person cannot hear what his neighbor says; and all the [unfortunate] wild beasts quiver with terror at the disturbance. And when they have all been driven together into that open glade, the Great Khan comes up on three elephants and shoots his arrows at the game. As soon as he has shot, the whole of his retinue do likewise. And when all have shot their arrows (each man’s arrows having a token by which they may be discerned), then the Great Emperor causeth to be called out “Syo!” which is to say as it were Quarter! to the beasts (to wit) that have been driven from the wood. Then [the huntsmen sound the recall, and call in the dogs and hawks from the prey] the animals which have escaped with their life are allowed to go back into the forest, and all the barons come forward to view the game that has been killed and to recover the arrows that they had shot (which they can well do by the marks on them); and every one has what his arrow has struck.”

The scroll by Liu Guandao, painted about 1280, shows a hunting party including Kublai Khan in a white robe. A hunter in the upper left takes aim at a bird beyond the frame, while a sighthound looks up, probably at the same bird. Note that one of the hunting party has a cheetah mounted behind him. The plate below, from a manuscript in the Bodleian Library at Oxford (MS 264,240 verso), illustrating a French manuscript, Li Livres du Graunt Caam, shows Kublai Khan hunting. The large number of dogs and the diverse kinds of prey follow the intent of Marco Polo's account. (Double click on images to enlarge.)

Something similar to the medieval English forest laws apparently applied when the khan hunted:

“There is another thing I should mention; to wit, that for 20 days' journey round the spot nobody is allowed, be he who he may, to keep hawks or hounds, though anywhere else whosoever list may keep them. And furthermore throughout all the Emperor's territories, nobody however audacious dares to hunt any of these four animals, to wit, hare, stag, buck, and roe, from the month of March to the month of October. Anybody who should do so would rue it bitterly. But those people are so obedient to their Lord's commands, that even if a man were to find one of those animals asleep by the roadside he would not touch it for the world! And thus the game multiplies at such a rate that the whole country swarms with it, and the Emperor gets as much as he could desire.”

Polo says, however, that anyone can hunt in those areas from November to February, when the king isn’t hunting. Presumably that wasn’t the most comfortable time of year.

Yule, in a note, says that Bajazet (Tamurlane), a century after Kublai, had 7,000 falconers, and 6,000 dog-keepers, so Europeans became familiar with accounts of large numbers of hunting dogs in the east.

There is also a description of entertainments of the Great Khan, which included Chinese jugglers who could make animals climb up a rope and disappear. The animals apparently included dogs, hogs, panthers, lions, and tigers.

Kler (1941) records that Mongols used dogs in hare hunting. As in many cultures, dogs were used to dispose of those not worthy of burial. Polo recounts Kublai Khan having the body of a traitor “dug up and cast into the street for the dogs to tear.”

Guarding Travelers

In his description of the province of Cuiju (commonly Guizhou or Kweichow in anglicizing), Polo states:

“But you see they have in this province a large breed of dogs, so fierce and bold that two of them together will attack a lion. So every man who goes a journey takes with him a couple of those dogs, and when a lion appears they have at him with the greatest boldness, and the lion turns on them, but can't touch them for they are very deft at eschewing his blows. So they follow him, perpetually giving tongue, and watching their chance to give him a bite in the rump or in the thigh, or wherever they may. The lion makes no reprisal except now and then to turn fiercely on them, and then indeed were he to catch the dogs it would be all over with them, but they take good care that he shall not. So, to escape the dogs' din, the lion makes off, and gets into the wood, where mayhap he stands at bay against a tree to have his rear protected from their annoyance. And when the travelers see the lion in this plight they take to their bows, for they are capital archers, and shoot their arrows at him till he falls dead. And 'tis thus that travelers in those parts do deliver themselves from those lions.”

Yule notes a report from his own century of caravans of Chinese travelers being accompanied by large dogs along the Mekong River, which was presumably for such protection.

Sled Dogs in Siberia

In describing the difficult country of the northern steppes of Siberia, Polo mentions the “immense bears entirely white, and more than 20 palms in length.” One area impassable by horses has post-houses “for the lodgment of couriers.” The post-houses have dogs:

“At each of these post-houses they keep some 40 dogs of great size, in fact not much smaller than donkeys, and these dogs draw the couriers over the day's journey from post-house to post-house, and I will tell you how. You see the ice and mire are so prevalent, that over this tract, which lies for those 13 days' journey in a great valley between two mountains, no horses (as I told you) can travel, nor can any wheeled carriage either. Wherefore they make sledges, which are carriages without wheels, and made so that they can run over the ice, and also over mire and mud without sinking too deep in it. Of these sledges indeed there are many in our own country, for 'tis just such that are used in winter for carrying hay and straw when there have been heavy rains and the country is deep in mire. On such a sledge then they lay a bear-skin on which the courier sits, and the sledge is drawn by six of those big dogs that I spoke of. The dogs have no driver, but go straight for the next post-house, drawing the sledge famously over ice and mire. The keeper of the post-house however also gets on a sledge drawn by dogs, and guides the party by the best and shortest way. And when they arrive at the next station they find a new relay of dogs and sledges ready to take them on, whilst the old relay turns back; and thus they accomplish the whole journey across that region, always drawn by dogs.”

Yule notes that in the 19th century sled dogs were not used as far south as Polo describes, but that Ibn Batuta, a 14th century traveler, confirms Polo’s account. The Chinese knew of dog sleds, as a Chinese poem contains the line: “Over the thick snow in a dog-cart.” Yule cites dog-sled experts as saying that Polo and Ibn Batuta and other early travelers overstated the size of the dogs and understated the number that pulled a sled. The plate is Yule’s depiction of a Siberian dog sled.

Large Dogs of Tibet

Polo describes the people of Tibet having “great numbers of large and fine dogs, which are of great service in catching the musk-beasts, and so they procure great abundance of musk.” In another chapter, Polo adds:

“They have mastiff dogs as big as donkeys, which are capital at seizing wild beasts ‘and in particular the wild oxen which are called Beyamini, very great and fierce animals. They have also sundry other kinds of sporting dogs, and excellent lanner falcons….”

Yule cites other travelers remarking on the size of the Tibetan mastiffs, “as large as Newfoundlands.” Yule refers to a priest’s account (Annales de la Propagation de la Foi, vol. 37) of a Tibetan mastiff beating off the attack of a leopard until the leopard split the dog’s skull open.

The depiction of the Tibetan mastiff here is taken from the 1859 work by John Henry Walsh, who wrote under the name Stonehenge, The Dog in Health and Disease.

Conclusion

John Masefield wrote: “The wonder of Marco Polo is this—that he created Asia for the European mind.” Despite such high praise, arguments have been made that Polo did not go to China, that he got somewhere close enough to pick up the accounts of travelers who had gone further, then spun what he remembered into a story while in a Genoese prison to entertain his cellmate, Rustichello da Pisa (Wood, 1996). An analysis of the dog references in translations of Polo’s account will not resolve such arguments. Nevertheless, Polo’s eye for detail provides valuable data, confirmed by travelers coming the century after, regarding how and where dogs were used in Asia. Much of the data seems so specific, and perhaps unimportant—such as the references to groups that eat dogs—that it would seem that someone taking a narrative from travelers at an intermediary station, say in Persia or India, would probably not bother. Nevertheless, I leave this debate to those qualified to participate in it.

Sources:

1. 1. Allsen, T.T. (2006). The Royal Hunt in Eurasian History. University of Pennsylvania Press, Philadelphia.
2. Collier, V.W.F. (1921). Dogs of China and Japan in Nature and Art. Frederick A. Stokes Co., New York.
3. Kler, J. (1941). Hunting Customs of the Ordos Mongols. Primitive Man, 14(3), 38-48.
4. Livres des Merveilles du Monde (Books of the Marvels of the World), sometimes called Il Milione, recorded by Rustichello da Pisa from stories told by Marco Polo, published c. 1300.
5. Masefield, J. (1907). Introduction. The Travels of Marco Polo the Venetian (1908). J.M. Dent & Sons, London; E.P. Dutton & Co., New York.
6. Stonehenge (John Henry Walsh) (1859). The Dog in Health and Disease.
7. White, D.G. (1991). Myths of the Dog-Men. University of Chicago Press, Chicago and London.
8. Wood, F. (1996). Did Marco Polo Go to China? Westview Press, Boulder, Colorado.
9. Yule, H. (1866) (editor and translator). Cathay and the Way Thither; Being a Collection of Medieval Notices of China, vols. I and II. Hakluyt Society, London.
10. Yule, H. (1871). The Book of Ser Marco Polo, the Venetian, vols. I and II. John Murray London. (In a note to Polo’s account of the dog-headed men of the Andaman Islands, Yule recognizes the widespread occurrence of dog-men stories, saying that they are at least as old as Ctesias. He notes that the Cubans described the Caribs to Columbus as man-eaters with dogs’ muzzles; the Danes spoke of the Cynocephali of Finland; Friar Jordanus also heard of dog-headed islanders in the east, Pere Barbe related that Nicobar people considered themselves of canine descent, but on the female side; Portuguese sailors heard that Peguans (Burmese) sprang from a dog and a Chinese woman; Coromandel Brahmans spoke of man-eaters on the Island of Andaman).

Thanks to Eric Krieger and Richard Hawkins for comments and corrections. I had speculated that the dog in the Guandao illustration was looking at the emperor but Richard notes this would probably be an affront. Rather, it is much more likely looking at the potential game beyond our view in the sky above.

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Two Recent Attacks: A Dog Is Muzzled in New York, A Boy Killed in South Carolina

About five million Americans are bitten by dogs ever year. The United States Postal Service, the American Veterinary Medical Association, and the American Academy of Pediatrics sponsor the National Dog Bite Prevention Week in May, and USPS reports that about 3,000 city and rural carriers are bitten by dogs every year. The USPS regularly posts tips about how to reduce dog bite risks.

A significant number of law enforcement officers are also bitten, as the first case below describes. The officer was trying to interview the neighbor of someone who had applied for a gun permit. Failure to train and control dogs is a major problem in our dog-tolerant society. The second case here is far more tragic and must speak for itself.

Thor Gets a Pen and a Muzzle for Attacking Policeman

In Town of Grand Island v. Long, 34 Misc.3d 1221, 2012 WL 384931 (City Court, City of Tonawanda, 2012), one sees a local judge dealing with a dog bite case in a sensible manner. The events took place in Grand Island, New York, but both judges of the Town of Grand Island Court recused themselves due to potential conflicts of interest caused by their prior representations of the defendant or his family. The case was moved a few miles to Tonawanda.

Sheriff Deputy Anthony Yavicoli was conducting a pistol permit investigation on Sunday, January 30, 2011. Thomas Long was one of the neighbors of the pistol permit applicant, and Yavicoli wanted to interview him. Yavicoli pulled into Long’s driveway, got out, and became aware of two dogs, a Labrador that shied away from him and a German shepherd that bit him on the left calf and shin and then both inner thighs. Attempting to get back in his car, he was bitten from behind. He returned to his station, then went to the hospital. The wounds are described by the trial judge:

“Upon examination of his wounds, Deputy Yavicoli discovered he was bleeding and that the bites had broken the skin in all three bite locations. Additionally, his uniform pants were ripped in all three bite locations. He then drove himself to Erie County Medical Center. At the emergency room, the staff cleaned and bandaged the wounds. He was also given an antibiotic, bandages, ibuprofen, and neosporin. After he was released, he returned to the sheriff substation. The deputy received no stitches or shots as a result of the bites. The testimony of the Deputy regarding these bites was supplemented by pictures of the bite marks on the day of the bite.”

Yavicoli took two days off, but the pain continued even after he returned to work. Although he had some scars, he was not seen again by a medical professional.

The trial court determined that the attack on Yavicoli was unjustified and unprovoked. Thor, the German shepherd, was determined to be a dangerous dog, which had caused physical injury. However, in order to consider euthanization, serious physical injury was required. Serious physical injury is defined by New York as “physical injury which creates a substantial risk of death, or which causes death or serious or protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” (Agriculture & Markets Law § 108(29))

There were three other reports of dog bite incidents involving Thor.

The judge said he could not determine by clear and convincing evidence that the injuries sustained by Yavicoli involved serious or protracted disfigurement. The judge cited a prior case where a dog bite tore a hamstring, requiring antibiotics, ibuprofen, and physical therapy for six to eight weeks. This appeared to be more serious than Yavicoli’s injuries, but was not found to involve serious physical injury. (People v. Jornov, 65 A.D.3d 363, 881 N.Y.S.3d 776 (Ct. App. 2009).

The trial court, therefore, ordered the following:

1. Thor was to be neutered, if he was not neutered already.
2. A microchip was to be put in Thor, again if there wasn’t one in him already.
3. Thor was to be evaluated by “a certified animal behaviorist, a board certified veterinary behaviorist, or another recognized expert in the field and completion of training or other treatment as deemed appropriate by such expert. The owner of the dog is responsible for all costs associated with such evaluations and training ordered under this section. This evaluation and training shall be in addition to any other evaluations that Thor has already undergone….”
4. Thor was to be kept in a secure locked pen when he was outside on the Long premises. “The pen shall be designed and constructed to prevent the escape of the dog, to prevent unauthorized contact with the dog, and to protect the dog from the elements. The pen shall be constructed of cyclone fencing or substantially similar metal-based material, the sides of which are to be affixed to posts and to a concrete footing and/or a pad that the dog cannot push through, climb over or dig out under such pen, which is to be no less than 6 feet in height.”
5. When guests visited the Longs, Thor was to be secured in another room away from the guests or in his pen.
6. Thor was to be on a leash and “muzzled (in a manner that will prevent biting any person or animal, but that shall not injure the dog or interfere with its vision or respiration) and handled by someone over the age of 21 years at any time that he is on public premises….”
7. The Longs were to maintain a $100,000 liability insurance policy for personal injury or death resulting from an attack by Thor. The court required that proof be provided to it of compliance with this requirement.

Thomas Long was also fined $400. Lest it be thought that the neutering was unnecessary, one study found that sexually intact dogs were 2.6 times more likely to bite than neutered dogs.

The insurance coverage could be a problem, since presumably no umbrella policy covered Thor's biting habit. An insurer might be willing to cover, but would probably set a high premium and stipulate compliance with the court's order.

Given that Thor had other incidents, the judge has to be regarded as more than fair to Thor. It is also apparent that the owners should check out local obedience classes.

A Tragedy in South Carolina

In South Carolina v. Collins, 2012 WL 469710 (Ct. App. 2012), a boy’s mother wondered where her son was when it was time for dinner. After looking at neighbors’ houses, she called the sheriff’s department. Officers found the boy’s body in the yard of Bentley Collins. As the boy’s mother testified, “he was torn to pieces. Pieces.”

Press reports have included the name of the victim and pictures of the victim and Collins, and other details of the case, but I will confine myself here to the legal perspective provided by the court.

Collins was convicted for involuntary manslaughter and three counts of owning a dangerous animal under the South Carolina Code. He was sentenced to five years in prison, followed by five years of probation. He appealed the conviction based on the admission of seven photos of the boy’s body that were taken by a forensic pathologist before he performed an autopsy, arguing unfair prejudice that substantially outweighed probative value. The court described the photos as follows:

“The seven photos admitted are graphic and shocking. They depict a ten-year-old boy's body on an autopsy table after being partially eaten by dogs. The photos are in color. One photo provides an encompassing view of what remains of the boy's upper body. Three close-up photos show the remains of his face. The exposed skull and jaw bone are plainly visible in these photos. Two of these close-ups also show the exposed arm, shoulder, and rib bones, where the flesh was eaten away from the middle of his chest, across his shoulder and down to his elbow, on both sides. One photo shows the left side of the boy's face from the back, again with the exposed jaw bone visible. The remaining two photos are of the body from the waist down, showing his blood-stained shorts and the bite marks on his legs. The pathologist described what the photos show, but seeing the photos draws an intense emotional response and a level of sympathy for the dead child that does not come from the testimony. It is difficult to look at each photo, and the combined effect of all seven is disturbing. The photos that show what remains of the child's face are chilling. The danger of unfair prejudice of the admitted photos is extreme.”

The prosecution’s theory at trial was that Collins “underfed the dogs, and because the dogs were hungry, they became aggressive and attacked the boy for food.” Officers who responded to the scene said they saw no visible food bowls for the dogs. A pathologist supported this argument, testifying:

“There were extensive traumatic injuries consisting of loss of skin and soft tissue in a tearing fashion about the face, the ears, the eyes, the neck, the chest. There was loss of skin and soft tissue with exposure of the bones of both shoulders. Essentially, the humeral bone in the upper arm, both right and left, was exposed from the shoulder to the elbow.”

The pathologist also stated that the ears and nose were completely eaten away. He court summarized additional testimony of the pathologist as follows:

“The State asked the pathologist what led him to conclude the ears and nose were ‘eaten away.’ He responded: ‘There was a virtual complete absence of the ear structures on the right side and just remnants, shredded remnants of skin and what were probably portions of the ear on the left. They were essentially gone.’ Finally, the pathologist said he normally does not take photos of an autopsy, but did so in this case because ‘[t]his autopsy showed tremendous traumatic injury to this young man. This degree of injury was [as] significant [a] traumatic injury as I've seen. I've never seen an attack by animals of this type....’ Thus, before the photos were admitted, the pathologist's testimony conclusively established that the dogs ate the boy.”

A dog behavior expert also testified that the dogs attacked the boy because they were hungry. The behaviorist testified:

“Based on—in ten years going back on reports that I've noted on dog bites and dog attacks and deaths caused by dogs this is the worst case I've ever seen. I worked for the sheriff's office for over a decade, and I have never seen something so gruesome.”

The court concluded that the testimony was enough, that the probative value of the photos was minimal and the danger of unfair prejudice high. The court concluded:

“These gruesome photos have an overwhelming capacity to lure the jury into declaring guilt on the emotional basis of sympathy for the boy and his mother and horror at the sight of the boy's body. This is the unfair prejudice that substantially outweighs the probative value of the photos. We recognize that the photos add a visual element not present in the testimony of the witnesses. However, this visual element does far more to create a danger of unfair prejudice than it does to add probative value.”

The appellate court reversed and remanded for a new trial.

Although the dogs might have been hungry in this case, a study of dog bite patterns in children concluded that dog attacks of children are usually motivated by aggression, not hunger. The researchers also found that attacks on children more often involve bites to the head and neck region than is the case with adults. Some severe cases resulted in decapitation.

Conclusion

As a dog owner, I believe that owning a dog involves responsibilities, serious responsibilities. Perhaps because they adapt to us so easily, we have a tendency to assume that aside from putting out food and allowing them to relieve themselves, we have no obligations to them. In a society where toys and gadgets increasingly require no assembly, come ready to go as soon as removed from the box, it seems to be a great shock to many people that dogs are independent thinking animals that need to be trained to be good citizens in our increasingly complex social environments. Training takes time. I believe that if you don’t have the time to give, don’t get a dog.

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Putting Dog in Back of Truck to Find Suspects Was Not Illegal Search, But Were Police Really Looking for Drugs?

We have discussed traffic stop cases where a dog, supposedly on its own initiative jumps into a car. As long as the police did not encourage the dog in this action, or facilitate it, courts have generally allowed the evidence following an alert of a dog that has entered a car. See Police and Military Dogs, Chapter 10: Automobile Sniffs, section on jumping into a vehicle.

In a recent case arising in Rhode Island, however, the handler directed the dog to jump into the back of a rental truck, and the evidence was not suppressed, because the prosecution convinced the federal district court that the dog was not sent into the truck to find drugs but rather to find people who might be hiding there and might be a danger to the officers involved. The court accepted this explanation despite the fact that the handler's incident report gave the reason for putting the dog in the truck as a drug sniff.

Surveillance Leads to Traffic Stop and Arrests

Richard Morel was under surveillance by the Drug Enforcement Administration and the Pawtucket Police Department, suspected of large-scale trafficking in cocaine and heroin. He had served nearly five years in prison in Rhode Island for a transaction involving over half a kilogram of cocaine.

On March 2, 2011, Morel picked up Donato Mayen-Munoz near the Providence train station and drove to his home, then to a Penske location where they rented a truck. They brought the truck back to Morel’s residence. Later, Mayen-Munoz drove the truck to a Motel 6 in Warwick, where he picked up two individuals. After two stops, the truck headed back towards Pawtucket.

Detective Dennis Smith called Sergeant Lefebvre and told him that he believed the truck now contained a large amount of narcotics. Both Smith and Lefebvre called Officer Pendergrass, a K-9 officer with the Pawtucket Police Department, to put him on notice that he and his dog might be needed. Lefebvre joined the tail with another vehicle.

When the truck made “a sharp, abrupt left turn without using its turn signal,” Lefebvre pulled it over. What followed is best described by the court:

“As Lefebvre approached the Penske truck, co-defendant Alavez emerged and started walking toward him. Lefebvre told Alavez to stop and asked him for his license and registration. Alavez appeared nervous. As Alavez was looking for paperwork in the truck, Lefebvre heard the sound of a door shut. He then looked inside the vehicle and noticed it was empty. This concerned Lefebvre because he was told by Detective Smith to expect three individuals inside the truck.”

Apparently Lefebvre did not position himself well enough to keep the cabin in view. As stated, Lefebvre had been told that there were three people in the cabin of the truck. At a later point the court states that “the government presented evidence that the search complied with PPD [Pawtucket Police Department] policy and procedure manuals." It must be questioned whether this was also true of the stop.

The court's account continues:

“Lefebvre asked Alavez about the whereabouts of his passengers, but he would not answer. Alavez eventually produced a California identification card, but no license. Lefebvre then arrested Alavez and placed him in the back of his police car. Lefebvre notified dispatch of the car stop and called Officer Pendergrass to have him respond immediately.

“Pendergrass arrived within several minutes [a later reference specifies about ten minutes], and Lefebvre asked him to send Bak, his K–9 police dog, into the back of the truck. Lefebvre testified that his request was motivated by both a concern that there might be somebody in the back of the truck and by a desire to search for narcotics. When pressed by the Court as to whether he really believed that an individual had gotten into the back of the truck, Lefebvre conceded that there was a solid wall between the passenger compartment and the back, but maintained that he honestly did not know whether someone was in the back.”

Officer Pendergrass testified that he was initially concerned that someone was in the back of the truck, but his police report did not mention any search for people though it did say that Lefebvre had requested that he search for possible narcotics. The court's opinion also states that “Smith testified that his original intention was to have Officer Pendergrass conduct an exterior dog sniff around the truck.” Whether this intention was communicated to Pendergrass remains unclear, but the police report would suggest that it might have been.

Pendergrass testified that his police dog, Bak, had separate commands for searching for humans and narcotics, but that he was trained to search for humans first. He also said that he might not be able to call Bak off after a search for humans if there was a narcotics scent present. It is not clear whether the defense sought the training and field records of Pendergrass and Bak to verify this ability on Bak’s part.

There is no mention of whether a warning was given prior to putting the dog in the truck. Protocol would usually require such a warning, probably repeated several times. The warning would be something like: “This is the Pawtucket Police Department. Come out now or I will send in a police dog and you may be bitten or hurt.”

The court’s description continues:

“At approximately 7:20 p.m., Officer Pendergrass placed Bak inside the back of the Penske truck, without giving any particular command. Bak's breathing and body language changed, and Pendergrass gave him the command to search for narcotics; Bak alerted to the presence of narcotics almost immediately. Officer Pendergrass returned Bak to his police vehicle at approximately 7:25 p.m.”

Officer Smith, who was watching the events from a distance, was in a position to see a passenger leave the truck during the initial period of the stop and walk away but he was not at the time in communication with Lefebvre. It is not clear whether he saw a second individual leave the truck. Mayen-Munoz was arrested in a donut shop near where the truck had been stopped.

The truck was taken into inventory and bales of marijuana were found.

Probable Cause Not Found for Arrest

Mayen-Munoz raised several issues in the suppression motion, but the one involving the dog was whether there was probable cause to arrest him based on Bak’s alert inside the Penske. The court analyzed the timeline of the police action and found that the exits of the donut shop were covered at 7:22:50 (confirmed by radio record), while Bak alerted to the crates inside the Penske at approximately 7:23, about the same time the Mayen-Munoz was placed in handcuffs inside the donut shop.

The court determined there was no basis for finding that the Bak’s alert was known to any of the detectives prior to the arrest of Mayen-Munoz. The court concluded that the evidence that was known at the time of the arrest supported reasonable suspicion, but not probable cause.

Inevitable Discovery Justifies Arrest

The prosecution argued that even if probable cause did not exist at the time of Mayen-Munoz’s arrest, the inevitable discovery doctrine applied and the federal district court agreed. In applying the doctrine to the case, the court considered whether the canine search might have been illegal:

“Detective Smith's testimony suggests that any violation was inadvertent and unplanned. Like Medeiros, Smith also testified that there was a lot going on in a short period of time and that an anticipated one-location traffic stop had quickly turned into a three-location stop with multiple suspects fleeing. Smith testified that his original intention was to have Officer Pendergrass conduct an exterior dog sniff around the truck. Furthermore, Officer Pendergrass and Sergeant Lefebvre had legitimate concerns that someone might be in the back of the truck because Lefebvre expected three individuals inside, not one. Finally, the government presented evidence that the search complied with PPD policy and procedure manuals. Taking all of that evidence and testimony together, the actions of the officers and detectives, even if unconstitutional, do not amount to a truly egregious or intentional transgression of codefendant Alavez's constitutional rights but rather an inadvertent and unplanned response to a quickly developing and complicated situation.”

Conclusion

The motion to suppress was denied. The case appears close, however. The federal district court might have emphasized other activities, such as the questionable legality of directing the dog to enter the vehicle, which was quite likely to find drugs, not people.

The police report, submitted closer to the events than the testimony in the federal district court, stated that the dog entered the vehicle to search for drugs. Police are told to make reports thorough because of their possible admission in a prosecution. "If it ain't in the report, it didn't happen." It seems rather fortuitous that it would later be realized that the search was for people. One might wonder if the officers learned that directing a dog into a vehicle to search for drugs would probably get the evidence suppressed as a violation under the Fourth Amendment. Perhaps such questions will receive further attention if the case proceeds.

U.S. v. Mayen Munoz, Cr. No. 11-035-S, 2012 WL 464023, 2012 U.S.Dist. LEXIS 18002 (D.R.I. 2012)

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

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