People with service animals still encounter resistance to bringing their animals into places of public accommodation, such as restaurants. They rightfully expect to be able to do this without difficulties but, if an issue arises, they hope that the police, if summoned, will at least be able to explain some of the rudiments of disability law to the employees of the business involved.
Nevertheless, a number of cases suggest that some law enforcement agencies remain ignorant of the rights of individuals with disabilities who use service animals, and that this ignorance has too often been forgiven by courts. A recent decision from the federal district court for the Western District of Louisiana, however, suggests that courts may not continue to shield officers who unthinkingly help a business bar or eject an individual with a service animal.
Before getting to the specifics of the recent decision and three prior decisions that were completely unsuccessful in this regard, in the manner of a law school class let us pose a series of hypotheticals. The following basic facts apply to each of the hypotheticals:
You have a service dog—say, a seizure-alert dog that generally is able to alert to an oncoming seizure several minutes before you have one. The dog is also trained to stay beside you and provide something for you to hold onto so that you can sit or lie down without injuring yourself during the first minutes of a seizure. The dog has a vest but you do not always put the vest on the dog. You do, however, keep some documents regarding the dog’s function with you at all times.
Also assume that you are a member of a neighborhood watch team and one night a week patrol the neighborhood with your dog and another member of the team. The neighborhood watch team has a meeting once a month. Formerly the team met in houses of the members but it has become too large and a decision is made to move the meeting to a restaurant. A diner nearby is chosen because it is convenient, can be walked to, and agrees to host the meeting and provide donuts for $50 if the meeting is held on a Monday night after 8 p.m., when business is slow in any case. You have only been in the diner twice, but neither time did you have your dog with you.
You take your dog to the neighborhood watch meeting. The dog is not wearing a vest. Outside the diner, the manager, who is greeting members of the watch team as they arrive, sees your dog and says that you cannot bring it into the restaurant. You explain the dog is a service dog and pull the documentation regarding the dog’s function from a briefcase you are holding. The manager refuses to look at the papers. Several other members of the team take your side but the manager insists that the diner only admits guide dogs.
Now, consider the following four hypothetical variations on what happens next:
- Because you are a member of the neighborhood watch, you have the local police station on speed dial and call the station to request assistance because your rights are being violated. In five minutes a patrol car arrives. The officer knows you and explains to the manager that your dog should be allowed the same access as would be given to a guide dog. The manager calls up the owner of the diner, who backs up the manager’s decision to exclude the dog. The manager remains adamant that you cannot bring the dog in. The officer explains to you that he cannot force the manager to admit the dog, but that you have rights and can file a complaint in the matter. You go home.
- The facts are the same except that the officer who responds to your call is not known to you and talks to the manager but does not attempt to convince him that he should admit both you and your dog to the diner. The officer tells you that he can do nothing for you, that the diner has the right to refuse service to anyone, and that you must leave. If you attempt to enter the restaurant the officer says he will have to arrest you and impound your dog.
- The facts are the same except that when you get to the diner and begin arguing with the manager, you do not need to call the police station because there is a police car in the lot and the officer in the car is eating a sandwich. Although he sees your interaction with the manager, he says he will talk to you after he finishes his lunch break. He makes a call to his girlfriend and talks to her for nearly twenty minutes before getting out of his car and listening to you. You do not know this officer but he clearly does not know anything about the law of service dogs. He says he will call his chief, as he has been instructed to do when situations arise with which he is not familiar. By the time the chief calls him back you have been waiting for nearly an hour and the meeting has gone on without you. The manager locked the door so when the officer knocks the manager has to unlock it. The officer explains to the manager that his chief has told him that you are entitled to bring the dog into the meeting, but the manager still refuses. The meeting is now almost over and you go home.
- The facts are the same except when you get to the diner there are two policemen outside the restaurant talking to members of the watch. One of the officers is going to speak at the meeting and the other has accompanied him for moral support. They have come as a courtesy to the neighborhood watch group. When the manager tells you that you cannot bring your dog into the meeting, the officers see what is going on and you ask for their assistance. They tell you that they cannot help you and that your problem is a federal matter on which they have no jurisdiction. They go into the diner without speaking to the manager. You and your dog walk home.
Let us review the decisions from which I drew these hypotheticals.
Pizzeria Ejects Patron with Service Dog
Pona v. Cecil Whittaker’s, Inc., 155 F.3d 1034 (8th Cir.1998)
The employees of Cecil Whittaker’s Pizzeria asked Marilyn Pona, who suffered from degenerative spine and joint disease, to leave a pizzeria because she had a dog with her. Pona alleged that the officers responding to the scene refused to explain the law regarding service dogs to the restaurant, but did inform her of her remedies, and asked her to leave the premises.
Pona filed claims under the Americans with Disabilities Act, 42 U.S.C. 1983 (providing a civil action for a deprivation of rights), and the Missouri Human Rights Act. She asserted that the police refusal to assist her in gaining access to the restaurant was due to a formal policy (Special Order 86-S-31) which directed police officers to take no enforcement action with regard to the Missouri statute (209.150) that gave her the right to be accompanied by a service dog in a place of public accommodation.
Cecil Whittacker’s Inc. moved for summary judgment on the basis that as the franchisor the pizzeria, it could not be liable under the ADA because it did not own, lease, or operate a place of public accommodation (as required to come under 42 U.S.C. 12182(a)). The district court agreed. The manager of the franchise had called Donald Glenn, president of CW, the franchisor, who told the manager that he “wouldn’t have any animals in [his] restaurant” because it “doesn’t look good for the franchise.” Glenn denied making such a statement, but for summary judgment purposes it was assumed that he did. The court said that such a statement by Glenn would not alter the fact that the franchisor had no control over the franchise in this regard and was at most giving advice.
There were three judges and three opinions in this Eighth Circuit case. All three judges agreed that the franchisor could not be held liable because of its lack of control of the franchise, even if an executive had given some advice to the franchisee’s management. Two of the judges found that the City of St. Louis Board of Police Commissioners did not have a policy that effectively withheld enforcement services from disabled citizens. There were some policy documents, but there were complex questions as to the authority under which they were issued and whether they applied to the particular situation involving Pona and the restaurant. Judge R.S. Arnold, however, disagreed with his colleagues and said there was in fact a policy that effectively withheld law enforcement services from disabled citizens.
Judge M.S. Arnold held that because the ADA claims failed, a 1983 violation for deprivation of federal rights based on such claims must fail. Also, an ADA violation is not actionable under 1983 because it must be presumed that the enforcement provisions of the ADA are the exclusive mechanism for enforcing the ADA. He did state, however, that “I intimate no view on the question of whether Title III violations can ever form the basis for a cause of action under § 1983.” Judge Panner said more generally that ADA Title II and III claims are not cognizable as 1983 claims. Judge R.S. Arnold did not mention 1983.
Pona also argued that the St. Louis police officers violated the Missouri Human Rights Act, which makes it unlawful to deny anyone accommodations provided by any place of public accommodation on the grounds of handicap. Judge M.S. Arnold doubted “the facts would support a finding that Ms. Pona was denied service at the pizzeria ‘on the grounds of … handicap.’ It was her dog, not Ms. Pona herself, to which the pizzeria raised objection.” Judge Panner disagreed, saying that denial of services on account of a service dog was denial of services on account of a disability, but without further explanation agreed that the state law claim should be dismissed. This could be because the franchisor was not in sufficient control to be liable or because no federal claim survived.
Would anyone seriously argue that telling a person in a wheelchair not to bring it in a restaurant, though the person needing the wheelchair could not come in without it, was not a denial based on a disability?
Popeye’s Manager Refuses Service to Customer with Hypoglycemia Alert Dog
Gipson v. Popeye’s Chicken & Biscuits, 942 F.Supp.2d 1303 (N.D. Ga. 2013)
Taylor Gipson has a dog named Bear that can detect his blood sugar level gets too high or too low. On May 12, 2012, Bear alerted Gipson in a manner that indicated to him that his blood sugar was low and he entered a Popeye’s restaurant to order food, which would have corrected this condition. He took a table near the back door to wait for his food while Bear lay quietly on the floor next to him.
Shanika Parks, manager of the restaurant, came to Gipson’s table and asked if Bear was a seeing-eye dog. Gipson replied that Bear was not and Parks demanded that he leave the restaurant with the dog. Gipson tried to tell Parks that he was entitled to keep a service dog, even though it was not a guide dog, with him under federal law. According to the Georgia federal district court (employing some passages from Gipson’s complaint):
“Parks ‘became agitated’ when Plaintiff stated he had a right under the Americans with Disabilities Act to remain in the restaurant with Bear… Her ‘agitation escalated’ when Plaintiff would not leave…. Parks stated that Plaintiff was ‘costing her customers’ and ‘demanded’ that Plaintiff and Bear ‘get out of her restaurant.’ … Despite Parks’s ‘escalating hostility and agitation,’ Plaintiff ‘calmly’ explained to Parks why he was legally entitled to have Bear in the restaurant.”
Parks then threatened to call the Cobb County Police Department to remove Gipson and Bear. Gipson again refused to leave and explained that he had a right to have Bear in the restaurant. Parks made good on her threat and called the police, as did Gipson, who assumed that the police would explain his rights to Parks.
Before the Cobb County Police arrived at the Popeye’s restaurant, another customer approached Parks and told her that Gipson had a right to have a service dog in the restaurant. The customer even apologized to Gipson for Parks’ behavior. It is at least a small comfort that the public is becoming aware of the rights of users of service animals, apparently somewhat more than some employees of national businesses and some police officers. Popeye’s restaurants, according to its answer to the complaint, have sound policies with regard to service animals, even if some employees do not know about them.
Anyone who has worked in disability law, or civil rights law, would assume on the facts that the police, by this time in the history of American law, would arrive and tell the manager that for nearly a generation service dogs have included many types of dogs besides guide dogs, as recently happened at a restaurant near Boston. Continuing with the court’s narrative of events:
“When the police arrived, Parks quickly went outside to meet the officer and loudly demanded that Plaintiff and Bear be ordered off the property or removed by force…. Plaintiff’s mother arrived on the scene to hear Parks’s conversation with the police…. Plaintiff also then spoke with Officer Fuller and explained why he believed under the Americans with Disabilities Act that he and Bear had a right to be in the restaurant…. Plaintiff’s mother offered Officer Fuller a card which explained Plaintiff’s rights, but Officer Fuller declined to look at it… Officer Fuller stopped Plaintiff from speaking and said he ‘knew the law.’ Officer Fuller spoke with Parks again and she again stated that Plaintiff had to leave the property…. Officer Fuller explained to Plaintiff that because the restaurant was ‘private property,’ Plaintiff and Bear were trespassing and had to leave immediately…. Although Plaintiff again tried to explain his rights, Plaintiff was eventually ‘forced to comply’ with Parks’s demand that he leave the restaurant.”
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| Narrative Portion of Incident Report in Popeyes Dispute |
Officer Fuller’s incident report reflects that Parks was aware of Gipson’s contention that the dog was a service dog, but also that she believed that several customers walked inside the business and then left because of the presence of the dog. The fact that a service animal might be disturbing to another guest is not a reason for barring access to a place of public accommodation unless the dog is out of control (which probably would indicate it is not a service animal). The incident report states that Bear was wearing a service dog vest. The vest does not prove that Bear was a service dog under federal law (as the Department of Justice has indicated in regulatory releases), but the ability of the dog to alert to hypo- or hyperglycemia does suggest that the dog very likely qualified as a service dog.
Cobb County argued that Gipson was not denied any service by Officer Fuller, who was responding to the calls both from Parks and Gipson. Officer Fuller informed Gipson that because the restaurant was private property and because the manager wanted Gipson to leave, he would need to leave. The County argued that Fuller’s actions did not deny “services, programs, or activities” of a public entity under Title II of the ADA, which applies to state and local governments. The court cited Bledsoe v. Palm Beach County Soil & Water Conservation District, 133 F.3d 816 (11th Cir. 1998) as providing that discrimination by a public entity need not be limited to “services, programs, or activities” of the entity but to all discrimination by the entity. The district court then analyzed whether there had been discrimination in Officer Fuller’s handing of the matter:
“[T]he court focuses on whether Plaintiff has alleged sufficient facts to show that the exclusion, denial of benefit, or discrimination was by reason of Plaintiffs disability. The court finds that Plaintiff has not. Based on the facts alleged in the complaint, Officer Fuller responded to the scene and listened to the position of both sides. The restaurant manager informed Officer Fuller that she wanted Plaintiff to leave because Plaintiffs service dog was scaring away other patrons. Plaintiff and his mother told Officer Fuller that Plaintiff had the right to be accompanied in the restaurant by his service dog. Officer Fuller determined that the restaurant was private property and the restaurant manager could ask Plaintiff and his service dog to leave. Officer Fuller, therefore, did provide services to both Plaintiff and the restaurant manager. Plaintiff disagrees with the outcome of those services, but there is no doubt that Officer Fuller responded to the scene and attempted to resolve the conflict. There can be no expectation that the police will always resolve a conflict in ones favor and Plaintiff has alleged no facts which would show that Officer Fullers determination that the restaurant manager could ask Plaintiff and his service dog to leave the private property was one he reached on the basis of Plaintiffs disability.”
The court then makes a highly questionable analogy:
“If the court were to determine that Plaintiff was denied services based on his disability because Officer Fuller did not convince the restaurant manager that Plaintiff and his service dog could remain in the restaurant, the police would become responsible for sorting out civil liabilities. While one might argue that whether a service dog is permitted in a restaurant is a fairly straight-forward question (and one that the court will need to address with respect to Popeyes liability in this civil action), another patron might challenge the degree of slope of a handicapped ramp into the restaurant, a much more difficult question to resolve on the scene. There can be no expectation that police officers are equipped to address that type of situation when responding to a disturbance call. County police officers are not civil lawyers. Plaintiff has not alleged that the officer violated his constitutional rights. Most significantly, Plaintiff is not left without a remedy; he has sued Popeyes Restaurant to enforce his rights under the Americans with Disabilities Act.”
Listening to a store manager without remarking that her position likely violates a customer’s rights, then telling the customer with a service dog to leave, is to be distinguished from a situation where an officer attempts to inform the store manager that her actions could lead to liability for both herself and her employer, and cautioning the manager that the officer expects he may be called to testify if the customer files suit. Explaining remedies to a person with a wheelchair might be the only appropriate action where the slope of a ramp is too great, because nothing else would be possible at the moment. Here, more of a dialogue initiated by the officer appears to have been both possible and desirable.
Courthouse Staff Delays Admission of Witness with Service Dog
Sears v. Bradley County Government, 821 F.Supp.2d 987 (ED Tenn., 2011)
Brenda Sears has a seizure disorder and uses a service dog named O’Neal. She went with the dog to the Bradley County Criminal Justice Center on August 11, 2009, to testify for a friend’s son. Sergeant Brown, operating the metal detector and security check at the courthouse, informed Sears that dogs were not allowed in the courtroom, to which she replied that the dog was a service animal. It took 20 minutes before Brown spoke with a court officer and showed him papers that had been given him by Sears’ husband regarding service animals. The papers were passed onto the judge in the case, who said he would look at them after lunch. The judge eventually said Sears could enter the courtroom with the dog.
During the lunch hour that the judge took, Sears stated that she was required to remain standing because there was no chair for her to use and that she was not allowed to use a restroom in the courthouse, forcing her to use one in a Taco Bell nearby.
Sears filed claims under the ADA, Title II, 42 U.S.C. 1983, and various state law torts. The Tennessee federal district court dismissed the ADA complaint against Brown in his individual capacity, finding no individual liability under Title II of the ADA. Brown was granted summary judgment as to the complaint against him in his official capacity as, according to the court, the facts did “support an inference Sergeant Brown intentionally discriminated against Plaintiff on account of her disability.” This, of course, raises the question already mentioned as to whether refusing to allow an individual with a disability to use a dog can amount to discrimination against a person because of a disability. The court said Brown was entitled to qualified immunity on the 1983 claim.
As to the county, “[f]ailure to supervise is not a viable theory for recovery of compensatory damages in a Title II ADA claim, since such failure is necessarily not directed at a particular disabled individual.” Failure to train Sergeant Brown was also “not a specific act of intentional discrimination against the Plaintiff herself….” The county said that “Sergeant Browns conduct towards Plaintiff was not motivated by discriminatory intent but his genuine bewilderment at how to handle service animals. Moreover, Sergeant Browns efforts to seek approval from Judge Randolph, including his forwarding of the papers provided by Plaintiffs husband to Judge Randolphs court officer, indicate he was not attempting to discriminate against Plaintiff.” The claims against the county also failed as the court did not believe Sears would be able to establish “an unconstitutional policy or custom, nor actionable failure to train or supervise its officers….”
As to the 1983 claim, the county argued that it was entitled to summary judgment “because, setting aside the question of whether Plaintiff even suffered a constitutionally-cognizable injury, Plaintiff cannot show the County had an official unconstitutional policy or custom which was responsible for the injury, or that the County was ‘deliberately indifferent’ to the rights of Plaintiff and similarly-situated individuals." The court agreed, and noted that after the incident, “Bradley County has adopted a policy and held a training session addressing the needs of disabled individuals with service animals.” This subsequent effort to educate the County’s law enforcement personnel turned out to be significant in the case discussed next (where no such effort was made despite a previous incident).
In other words, delay and indifference do not amount to constitutional violations, at least when the subsequent admission of the service dog can be said to preclude any proof that there was intentional discrimination against someone with a disability using a service dog.
(For an earlier case on similar facts, which was discussed in the opinion in Sears, see Valder v. City of Grand Forks, 213 F.R.D. 491 (2003). Also, as my legal colleagues will be quick to point out if I don’t, the preamble to Department of Justice final regulations regarding access to Title II facilities specifically mentions courthouses. 75 Fed. Reg. 56192 (September 15, 2010).)
Former Police Officer with Service Dog Barred from Neighborhood Watch Meeting
Albright v. Sheriff’s Department of Rapides Parish, No. 12-2117, 2014 US Dist LEXIS 132946 (2014)
David Albright has two dogs that, in a complaint filed in a Louisiana federal district court, he says are service dogs that alert to episodes of cataplexy and narcolepsy, which cause seizures and instantaneous sleep spells. Albright says that the dogs alert five minutes in advance to impending episodes, which can occur three to four times a day.
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