“Service dog” attack aboard airliner spotlights crisis
ATLANTA––A June 4, 2017 attack by a purported “chocolate lab/pointer mix” who appears to have actually been a pit bull or pit mix has renewed attention to widespread abuse of the federal Americans with Disabilities Act and Air Carrier Access Act to force dogs, especially pit bulls, into places and situations in which dogs would normally not be allowed, as a matter of protecting the well-being of both dogs and humans.
Trapped in window seat
According to attorney J. Ross Massey of Alexander Shunnarah & Associates, representing attack victim Marlin Tremaine Jackson, of Daphne, Alabama, Jackson “boarded a Delta Air Lines flight traveling from Atlanta to San Diego.” Assigned a window seat on the left side of the plane, Jackson discovered that fellow passenger Ronald Kevin Mundy, Jr. “was sitting in the middle seat with his dog in his lap.
“According to witnesses,” Massey said, “the approximately 50-pound dog growled at Jackson soon after he took his seat. The dog continued to act in a strange manner as Jackson attempted to buckle his seatbelt. The growling increased and the dog lunged for Jackson’s face. The dog began biting Jackson, who could not escape due to his position against the plane’s window.
“The dog was pulled away but broke free from Mundy’s grasp,” Massey continued, “and attacked Jackson a second time.
“The attacks reportedly lasted 30 seconds and resulted in profuse bleeding from severe lacerations to Mr. Jackson’s face, including a puncture through the lip and gum.
“Jackson’s injuries required immediate transport to the emergency room via ambulance, where he received 28 stitches.”
The Atlanta Police Department reported that Mundy is a member of the U.S. Marine Corps “who advised that the dog was issued to him for support,” wrote Kelly Yamanouchi of the Atlanta Journal-Constitution.
Even some dog advocacy media see the problem
Concern about misuse abuse of the Americans with Disabilities Act and Air Carrier Access Act has been rising for some time.
The Dogington Post, an online periodical for dog lovers, on February 16, 2016 joined the growing chorus of media concerned about “the huge loopholes” in the federal Americans with Disabilities Act that enable people who are not disabled to take pet dogs into otherwise restricted public places as “service dogs.”
Said The Dogington Post, “While there are are roughly 22,000 legitimate service dog teams in America, hundreds of thousands of fake service dog vests, certificates and ID cards are sold every year.”
Added Dogington Post publisher Harlan Kilstein, “It’s a huge industry in which millions of dollars are being made tempting dog owners to cheat the system.”
The Dogington Post criticism of misuse of the Americans with Disabilities Act appears to be the first, or almost the first, from advertising-driven mainstream pet industry media.
States try to fill regulatory gap
Florida on July 1, 2015 joined California and a growing number of other states which have criminalized claiming that an unqualified pet is a service animal.
The state laws seek to reinforce Department of Justice regulatory amendments issued in 2011 that narrowed the former definition of service animal to include only dogs and miniature horses who have been trained to perform specific useful tasks for disabled people.
But the 2011 Department of Justice amendments stopped far short of recognizing a right to public health and safety that supersedes the right of disabled individuals to privacy about the nature of their disabilities.
Putting the right of privacy of users of claimed service dogs first, the present Americans with Disabilities Act enforcement regulations have encouraged a “full court press” by pit bull advocates using lawsuits––or the threat of lawsuits––to force repeals or crippling amendments to community ordinances restricting possession of pit bulls.
Only two questions allowed
Business managers facing someone who demands access to premises with a purported service dog are allowed to ask only two questions: “Is the dog required because of a disability?” and “What work or task has the dog been trained to do?”
Even if the answers are questionable, asking any further questions of a person who can establish a claim to possessing a legitimate service dog in court are a violation of the Americans with Disabilities Act.
Only if a claimed service dog is already out of control or actually defecating and/or urinating in the premises can the business manager ask that the dog be removed.
The fines for alleged violations of the Americans with Disabilities Act are $55,000 for the first offense and $100,000 for each additional offense. Falsely accusing a valid service dog can result in lawsuits as well. The dog owner can also sue the business for damages.
Four “service dog” fatalities
Since the 2011 Department of Justice amendments to the Americans with Disabilities Act enforcement regulations took effect, through to March 4, 2018, 21 purported service dogs including 13 pit bulls, three Rottweilers, two German shepherds, and three dogs of unidentified breed have disfigured at least 15 people and killed four. There were no previous disfiguring or fatal attacks by service dogs on record.
Florida law weaker than California
The California law––which has apparently not yet been successfully invoked––provides a fine of up to $1,000 and/or six months in county jail for misrepresenting a dog as a service dog. The offense is defined as a misdemeanor.
The apparently weaker Florida law “will make misrepresenting a dog as a service dog a second-degree misdemeanor,” explained Marisol Medina of Associated Press. “The offense is punishable with up to 60 days in jail and 30 hours of community service for an organization that serves people with disabilities, to be completed in less than six months.”
But the Florida law “will also make it illegal to deny accommodations to or discriminate against anyone accompanied by a service animal,” Medina continued, meaning that it potentially widens the opportunities for dogs to be misrepresented as service animals, without in any way increasing the ability of business managers and landlords to determine whether a dog does in truth perform any services other than fulfilling the normal roles of pets.
Hospital case brought legislation
State representative Jimmie Smith (R-Inverness) introduced the new Florida legislation after a widely publicized January 2014 incident in which the Capital Regional Medical Center in Tallahassee barred a woman named Amanda Figueroa from entering with her purported pit bull medical service dog, to visit a hospitalized friend.
“At Capital Regional Medical Center,” the hospital said in a prepared statement, “our first priority is for the safety and well-being of our patients. We have policies in place for the safety of not only our patients, but visitors and staff as well.”
Figueroa appealed to the Florida state attorney’s office.
“Florida law states a service dog must be admitted to public venues like hospitals to help people who are blind, deaf, have balance issues, or perform other tasks,” summarized Andy Alcock of WCTV. “It also says fear of animals is not a valid reason for denying access. Denial is a second degree misdemeanor.”
“Some moron probably wrote that law”
But Willie Meggs, Florida state attorney for the second district, declined to prosecute.
“I don’t see how having a pit bull running loose with you qualifies as a service dog,” Meggs told Alcock.
Reminded of the Americans with Disabilities Act language, Meggs responded, “Some moron in Congress probably wrote that law,” making himself an instant hero to victims of dog attacks and service dog users whose dogs have been killed or injured by fake service dogs, but also exposing himself to ongoing online attacks from pit bull advocates.
Same problem in Canada
Misrepresentation of dogs as service dogs has also emerged as a growing public health and safety issue in Canada. The British Columbia revised Guide Dog & Service Dog Act of 2015 is reportedly the first updated Canadian legislation to specifically address fake service dogs.
“While there are no available numbers documenting the problem,” wrote Michelle McQuigge of Canadian Press soon after the British Columbia law was passed, “service dog trainers and owners alike say their circles are increasingly abuzz with anecdotes of people putting official-looking paraphernalia on pet dogs in the hopes that they could then enjoy the same broad access rights as certified service animals. They say they’ve heard motives ranging from a reluctance to be separated from their four-legged friends during air travel to a desire to cash in on discounts most veterinarians offer clients with working dogs.
“Since there are no federal regulations around service animal registration,” McQuigge continued, “the British Columbia law proposes to tackle the problem by issuing provincial identity cards,” already issued in Quebec and Ontario. “Dogs trained by schools accredited under the leading global regulatory bodies — the International Guide Dog Federation or Assistance Dogs International — will automatically receive a provincial I.D. Those who seek canine partners from non-accredited facilities or take on the training themselves will have to have their dogs pass a provincial test to ensure their performance and behavior are in line with international standards.”
ADA supersedes state laws
Such legislation, if adopted at the state level in the U.S., would be overturned under the superseding authority of the Americans With Disabilities Act. The Americans With Disabilities Act enforcement regulations preclude even asking a person claiming to have a service dog to provide documentation of the claim––which in effect gives a free pass to liars and makes challenging a suspected false claim a potentially very costly gamble for a business owner or landlord, who may nonetheless be liable for damages if a fake service dog is admitted to premises, then kills, injures, or infects a person or another animal.
But while asking someone claiming to have a service dog to provide proof that the dog provides service is illegal, selling paraphernalia to outfit a dog as a more convincing “service animal” is not.
“By strapping a vest or backpack that says ‘service animal’ to their pet, anyone can go in stores and restaurants where other dogs are banned,” reported Sue Manning of Associated Press in October 2013. “Corey Hudson, chief executive officer of Canine Companions for Independence in San Rafael and president of Assistance Dogs International, a coalition of training schools, is leading the effort to get the U.S. Department of Justice to open talks and explore ways to identify the real from the phony,” but the Department of Justice so far has remained unresponsive.
Faking the appearance of having a service dog is “easy to do online,” affirmed CBS Local 2 morning anchor Jenifer Daniels in July 2014, from Thousand Palms, California. “We ordered a vest, certificate and ID card for $142. There are less expensive sites but they don’t include the same items. With minimal questions asked and a credit card we received our kit within five business days. Proof of our dog’s training and proof of our disability were never needed.”
Daniels asked the U.S. Department of Justice “why there is no regulating governing body and why no standards exist for service dogs and their trainers,” she continued.
Responded the U.S. Department of Justice by e-mail, “The Americans with Disabilities Act is a civil rights law to protect the rights of people with disabilities, including those who use service animals. The ADA does not address individuals without disabilities, such as anyone who may falsely claim that a pet is a service animal. Because this issue does not address the civil rights of people with disabilities it is not in our regulating authority under the ADA to issue regulations to penalize false claims that a pet is a service animal. However we note that the state, civil or criminal law may already penalize such claims,” a rather meaningless note in view that the Americans with Disabilities Act prohibits practically anything that might be done to identify a bogus claim.
No standards for trainers, either
Later in her broadcast Daniels introduced Sandy Fike-Boisvert, a Ph.D. candidate at Walden University and a clinician-trainer who prepares legitimate service dogs to help disabled military veterans.
Fike-Boisvert “knows personally how dangerous fake service dogs can be,” Daniels explained. “She was mauled by a supposed service dog. After two weeks in the hospital she required a service dog of her own and the agency that had presumably trained the dog that mauled her had closed its doors and disappeared.”
“Privacy issues are not the only problem with the Americans with Disabilities Act rules and regulations,” Daniels added. “There is also no governing body [in the U.S.] to set standards for the training of dogs or the person training them.”
This leaves people who legitimately need service dogs to decipher the competing claims of alleged service dog providers on their own.
Rather than wait the many months or even years that obtaining an individually trained service dog from an established nonprofit service dog provider may take, and rather than go through extensive training with the dog, some would-be service dog users try to take short-cuts by paying exorbitant sums to private trainers or upstart nonprofits, who claim to offer dogs ready to work.
Compassionate Paws case
Some such cases have gone to court. A September 2013 case filed on behalf of seven plaintiff families against an entity called Compassionate Paws, owner Vicki G. Pingel, and her mother, Harriet Berg of Wautoma, Wisconsin, alleged breach of contract, intentional misrepresentation, conspiracy, conspiracy to defraud, and fraudulent representation, wrote Sharon Roznik of the Fond du Lac Reporter.
Coplaintiffs Mary and Grant Hultman of Hartland charged that “a great Pyrenees dog they purchased from Compassionate Paws for their 6-year-old son, Lucas,” who suffers from a severe developmental disability, “wanted nothing to do with their son, lacked skills, was not housebroken, and arrived with hookworm and Lyme disease,” Roznik continued in June 2014. “The Hultmans and three other parties from Minnesota, Racine and Hartland, have filed complaints against Compassionate Paws with the Wisconsin Department of Agriculture, Trade and Consumer Protection,” Roznik added.
The outcome of the case––if there is an outcome yet––is unknown.
Air Carrier Access Act
The Air Carrier Access Act compounds the failures of the Americans with Disabilities Act to protect anyone other than the owners of claimed service dogs by extending the definition of a service dog to include dogs kept for “emotional support.”
“To demonstrate the need for an emotional support animal, the animal’s owner needs a letter from a mental health professional,” explained Billy Witz in the November 15, 2013 edition of The New York Times.
But that requirement is practically a free pass for mentally ill people to fly with unsafe dogs, in close proximity to dozens of others who have little or no ability to escape from a sudden rampage.
The presence of “emotional support dogs” in airline cabins “is increasingly facing a backlash from flight attendants, passengers with allergies and owners of service animals, like Seeing Eye dogs, who say that airplane cabins have become crowded with uncaged animals who have no business being there,” Witz said.
Assistance dogs are trained to behave
International Assistance Dog Week founder Marcie Davis “uses a wheelchair, flies about once a month, along with a service dog, for her job as a health and human services consultant,” wrote Witz.
“It’s becoming a big problem,” Davis told Witz. “Assistance dogs are trained not to bark in public, not to go smelling other dogs or people,” she said. “I’ve had my dog attacked in multiple situations. Honestly, I understand that there’s some value that people need an emotional assistance dog. But I think a lot of this is that people love their dogs and think they feel like if you have your dog, why can’t I have mine?”
“The Department of Transportation does not require airlines to keep data on emotional support animals,” Witz continued. “One that does, JetBlue expects more than 20,000 emotional support and service animals this year.”
“Service” vs. “emotional support”
In common use and public understanding, there is little distinction between a “service” dog and an “emotional support” or “therapy” dog.
In practice, however, a service dog is on the job of assisting a particular human in need 24 hours a day, seven days a week, without days off. A service dog––a legitimate service dog––is of necessity extensively trained. This includes training in when to take the initiative, doing something extraordinary in a crisis without awaiting a command.
Though there are service animals other than dogs, only dogs have adapted successfully to the demands of service in significant numbers.
Therapy animals, including dogs, may also be extensively trained, and may also be very hard-working, but the animal who visits hospitals and nursing homes is not on the job 24/7, and is not expected to take the initiative when a particular person is unconscious, having a stroke or seizure, unaware of a fire or other special danger, or otherwise at risk.
Fighting breeds rarely used for service
Pit bulls, Rottweilers, and other dogs of fighting breeds are rarely trained as service dogs––at least not by established service dog providers. Some dogs of fighting breeds have been trained to perform legitimate acts of service, typically by people who imagine that this will help to improve the image of these breeds, leading to more of them being adopted.
Yet people who need service dogs, including to cope with high-stress situations, are inherently less able than most others to control a dog if any dangerous behavior occurs. Purported “service” pit bulls and Rottweilers have accounted for more than 90% of the incidents in which claimed service dogs have run amok, injuring or killing humans and other animals.
The more these breeds are put into roles requiring absolutely perfect self-discipline, the more such incidents are likely to occur.
Already apprehensive about admitting service dogs to the premises for which they are responsible, business managers, landlords, bus operators, and school administrators have even more reason to be apprehensive when the dogs are of breeds who are collectively responsible for more than 80% of all lethal and disfiguring attacks on humans, and more than 95% of lethal attacks on other animals.
The public also has cause to be uneasy about being subjected to the presence of dogs of breeds that have killed more than 300 people and disfigured more than 3,500 in the past 33 years.
Service dog not meant to be an ad
The bottom line may be that a service animal is not meant to be a walking advertisement for anything.
“A service animal should be almost invisible,” Delta Society spokesperson JoAnn Turnbull explained in 2009 to Seattle times reporter Nancy Bartley. “If you are eating at a restaurant, you shouldn’t know a service animal is there.”
Putting a service animal into the role of ambassador is subjecting the service animal to a second high-stress job, on top of the first, and is inherently interfering with the goal of enabling the person whom the animal assists to lead an otherwise normal life.
Optimism about 2011 ADA amendments
James J. McDonald, Jr., managing partner of the Irvine, Calif. office of the national labor and employment law firm Fisher & Phillips LLP, was optimistic in May 2011, after the Americans with Disabilities Act enforcement regulations were amended to exclude coverage of claimed service animals other than dogs and miniature horses.
“When the Americans with Disabilities Act was enacted,” in 1990, “most service animals were ‘seeing-eye’ dogs who assisted blind or sight-impaired persons,” McDonald explained. “In most cases, these dogs were highly trained and, because of their extensive training, were not likely to create a nuisance or a sanitary problem.
“The new regulations do not place limits on breed or size of dog,” McDonald observed. However, under the 2011 regulations, “The mere ‘provision of emotional support, well-being, comfort, or companionship does not constitute work or tasks’ for purposes of the definition of service animal. Thus, animals who provide only comfort or emotional support for their owners no longer qualify as service animals.”
“The new regulations additionally clarify that ‘attack dogs’ trained to provide aggressive protection of their owners will not qualify as service animals,” McDonald said. “The crime deterrent effect of a dog’s presence, by itself, does not qualify as ‘work’ or ‘tasks’ for purposes of the service animal definition.
“Full court press”
But, despite sporadic earlier attempts, the “full court press” to use the Americans with Disabilities Act to damage or repeal legislation restricting possession of pit bulls and other fighting breeds gained momentum only after the 2011 regulations took effect.
Most such cases that have actually gone to court have failed, but only if the jurisdictions facing the threat of lawsuit have amended their ordinances to create exemptions for dogs of fighting breeds claimed by their owners to be service dogs.
Since the present Americans with Disabilities Act enforcement regulations prohibit police and animal control officers from asking the questions that could identify frauds, such amendments in effect render the ordinances unenforceable.
In Denver, for example, U.S. District Court Judge Marcia Krieger in August 2013 threw out a lawsuit seeking to overturn the Aurora and Denver ordinances against possession of pit bulls, ruling that both cities “had done enough to allow pit bulls as service dogs,” summarized Carlos Illescas of the Denver Post.
“Aurora maintains a policy that requires owners of pit bulls to follow more restrictions than service dogs of other breeds,” Illescas wrote, but “In Denver, law enforcement officers are essentially told to look the other way when they encounter the animals as service dogs.”
Portland insurance case
Another attempted use of anti-discrimination laws to force pit bulls into places that do not want them was a case invoking both the Americans with Disabilities Act and the Fair Housing Act, filed in June 2015 for the Fair Housing Council of Oregon by attorney Dennis Steinman, against the insurance agency Lloyd Purdy & Co. of Portland, Oregon and the insurance provider Travelers.
Steinman contended, summarized Tim Fought of Associated Press, that “The Fair Housing Act prohibits providers of housing or housing services such as insurance companies from turning down a request for homeowners insurance based on the breed of a service animal. Instead, they have to show that the conduct of the specific animal is a threat to humans or property.”
A homeowner can be refused insurance “because Spot is a bad dog,” Steinman told Fought, “but it has to be based on the particular dog.”
The case was dismissed in December 2016 due to lack of standing, specifically because the Fair Housing Council of Oregon did not pursue the case on behalf of any specific individual plaintiffs or actions by the insurance company.
Pooled risk & State Farm
The notion asserted by Steinman that assessed actuarial risk “has to be based on the particular” anything––dog, car, house, health, life itself, or any other insured entity––directly contradicted the concept of pooled risk underlying the entire insurance industry.
Simply put, the concept of pooled risk allows insurers to accept premiums from large numbers of people as “bets,” in effect, that the insurers will not have to pay back claims exceeding the sums collected.
Risk pools are constructed by each insurer based on collective characteristics which together project more-or-less equivalent likelihood of claims requiring payout. If someone seeking insurance presents an abnormally high risk of a payout becoming necessary, for example by riding a motorcycle instead of driving a car, either the premiums are adjusted upward proportionately, or the “bet” is refused.
Otherwise, every other member of the risk pool would have to pay higher premiums to offset the risk presented by the riskier individual.
The potential cost to most dog owners if actuarial risk could not be pooled by dog breed is illustrated by State Farm data released just ahead of Dog Bite Prevention Week 2015.
State Farm policy holders pay 20% more
State Farm is among the few major U.S. insurance groups that cover pit bulls without breed-specific restrictions. Thirteen major insurance groups do not insure pit bulls at all.
All U.S. insurers combined in 2013 collectively paid out more than $483 million to settle 17,369 claims resulting from dog attacks: an average of $27,808 per claim.
State Farm, according to the National Association of Insurance Commissions, has a property-and-casualty insurance market share of 10.28%.
But State Farm, handling 20% of the total dog attack claims, or nearly twice as many as the norm for the industry, issued 23.8% of the payouts: an average of $32,857 per claim.
This amounts to dog owners who insure with State Farm having to pay about 20% more in premiums, all other factors being equal, than if they insured with a company that does not cover pit bulls.