Courtroom animal advocate program laws give a voice to the voiceless

In 2006, quarterback Michael Vick was the highest-paid player in the NFL. In 2007, he was indicted in federal and state court for dog fighting. This extremely high-profile case raised awareness of the cruelty and abuse inherent in animal fighting. The public urged the judge and assistant U.S. attorney to help the dogs. While the case was typical of organized dog fighting prosecutions in many respects, there were also some unique factors involved. Most notably, in the federal case, the U.S. District Court appointed a guardian/special master to advise the court regarding the appropriate disposition of 48 dogs seized from the dog fighting operation.

The court appointed Rebecca Huss, Professor of Law at Valparaiso University School of Law, as the guardian/special master. According to the Animal Legal Defense Fund (ALDF), a national nonprofit that uses the legal system to advance animals’ interests, the Vick case was the first time that the court appointed an attorney to advocate for the animal victims in a dog fighting case. Based on her evaluation and reported recommendations, the dogs were ordered placed with eight different organizations. They began their new lives, and their rehabilitation inspired lasting policy improvements.

One such policy improvement was the amendment of some states’ laws to require evaluation of fighting animals rather than automatic euthanasia. Michigan Humane drafted and advocated for such a change to Michigan’s animal fighting statute, which passed in 2018. Another positive change brought about by this case was the introduction of Courtroom Animal Advocate Program (CAAP) laws.

CAAP law allows a judge presiding over a criminal animal abuse case to appoint a trained volunteer lawyer or supervised law student to advocate for the animal victim or victims. The ALDF describes the volunteer advocate’s duties to include “appear[ing] in court and assist[ing] the judge by drafting briefs, conducting research, gathering information from veterinarians, animal control officers, and law enforcement officials, and making recommendations on behalf of the animal victim’s interests.” The volunteer attorney or law student is independent and objective, working for neither the prosecution nor the defense, but instead serving as a voice for the animal victim or victims and representing the interests of justice.

CAAP volunteers provide invaluable assistance to the court in reaching fair and appropriate outcomes in criminal animal abuse cases. Judges, prosecutors, and defense attorneys are not necessarily familiar with the special considerations involved when animals are both victims and evidence of a crime. CAAP laws ensure that someone in the case is focused on the animals’ best interests.

Connecticut passed the first CAAP law in the country in 2016. The law was named Desmond’s Law after a dog who was adopted from a shelter and abused and ultimately strangled to death by his adopter. The defendant was sentenced to a rehabilitation program designed for nonviolent offenders, and his record was expunged upon completing the program. Advocates appalled by this outcome fought for enactment of Desmond’s Law to ensure that future animal cruelty victims would have a voice in the courtroom.

Maine was the second state to enact a CAAP law. A CAAP bill was introduced earlier this year in New Jersey and has passed the New Jersey Assembly Judiciary Committee. Although past efforts to introduce a CAAP bill in Michigan were not successful, there is a chance that the bill will be reintroduced.

Jessica Rubin, University of Connecticut Professor of Law and Director of the UConn Animal Law Clinic, serves as an advocate and supervises law students appointed as advocates under Desmond’s Law. Reflecting on the first four years of her experience after the passage of Desmond’s Law, she said, “Desmond’s Law and similar advocacy programs enable a court to move away from an incarceration-release binary, and focus instead on the welfare of animal victims, restitution for service providers, and prevention of future harm.”

As of 2014, all 50 states and the District of Columbia have at least one felony statute prohibiting animal cruelty. In 2016, the FBI began separately collecting information on animal abuse crimes, and its National Incident Based Reporting System categorizes animal abuse as a crime against society. There is a well-researched connection, referred to as The Link,® between violence against animals and violence against humans. CAAP programs represent the next step based on the growing understanding of the seriousness of animal abuse and provide the legal system with a no-cost resource to thoroughly address animal cruelty cases to the benefit of both animals and people.

We are going to keep working to improve animal welfare and create a more humane community, while serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives. If you know someone who you think would be interested in this information, please encourage them to sign up for our Legislative Action Network.

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The link between animal abuse and human violence and its impact on animal protection laws

If you are a regular reader of this blog, I’m sure I don’t have to explain the human-animal bond. According to an AVMA survey, 85% of dog owners and 76% of cat owners consider their pets to be family members. Studies show that sharing our lives with pets can have significant mental and physical health benefits.

While all animal lovers are intuitively familiar with the human-animal bond, fewer are aware of the connection between human violence and animal abuse. Well-documented and reliable studies regarding the connection between animal abuse and human violence, which came to be known as “The Link,”® started in the mid-twentieth century.

One type of human violence associated with animal abuse is domestic violence. One study revealed that 89% of women who had animals during an abusive relationship said their animals were threatened, harmed, or killed by their abuser. Abusers exploit the human-animal bond and use it to control or harm a human victim. Victims of domestic violence often report that they have stayed in an abusive relationship out of fear of what will happen to their pets if they leave.

The Michigan statute prohibiting animal cruelty, MCL § 750.50b, was revised effective March 21, 2019. The amendments to the statute created first-, second-, and third-degree animal cruelty. First- and second-degree animal cruelty, which apply to companion animals and situations where the defendant has threatened to violate or has violated the statute “with the intent to cause mental suffering or distress to a person or exert control over a person,” acknowledge The Link® and the human-animal bond.

The statute provides the maximum penalties that can be imposed upon conviction. First-degree animal cruelty carries a maximum sentence of ten years, second degree carries a potential seven-year sentence, and third degree carries a possible four-year sentence. While these are significant sentences, typically, the sentence given rarely involves jail or prison time.

One reason for this is the Michigan statutory sentencing guidelines. In felony cases where there is no mandatory sentence, the court is required to consider the statutory sentencing guidelines. The guidelines assign points based on the defendant’s prior record (PRV) and the relevant offense variables (OVs), which are determined by crime group (crimes against persons, property, involving a controlled substance, against public order, against public safety, or against public trust). The intersection of the PRV and OV scores are then located on a grid according to crime class, which is determined by the seriousness of the offense and provides the recommended sentence, which may include jail or prison time.

Crime classes are given letter values, with Class A offenses being the most egregious. First-degree animal cruelty is a D-class offense, second-degree animal cruelty is an E-class offense, and third-degree animal cruelty is an F-class offense. Even for a D-class offense, if the defendant does not have a prior record, the sentencing guidelines will not likely generate a jail or prison sentence because of the way the OVs are scored.

Violations of MCL § 750.50b are considered crimes against property, as animals are legally property, and they are scored under the Property OVs. OVs are scored a point value based on the crime or method used in the crime. With the exception of one 5-point offense, five of the twelve current Property OVs cannot be used for animal cruelty crimes due to the use of the word “victim,” which legally is not applicable to animals. Of the remaining seven, three of those OVs are statistically unlikely to happen. Therefore, even if the defendant scored the maximum point value in the remaining four OVs (45 points), which is still unlikely, he or she would not reach the level of any jail or prison time, no matter how heinous or brutal the crime inflicted upon the animal, unless he or she also had PRV points.

Even for a conviction of first-degree animal cruelty, an OV score of 45, coupled with a PRV score of 0, would place the defendant in an intermediate sanction cell on the D-class sentencing grid. An intermediate sanction does not involve jail time.

We are collaborating with other stakeholders to propose amendments to the OVs that apply where a companion animal is the victim so that the sentencing guidelines will appropriately reflect the seriousness of these offenses and fulfill the legislature’s intent in amending the anti-cruelty statute to increase potential sentences. Intentional, violent acts of torture or death to animals should be sentenced differently than the intentional destruction of inanimate objects. Crimes against animals must be taken seriously because they are really crimes against society and are often related to violence against humans.

We are going to keep working to improve animal welfare and create a more humane community while serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives. If you know someone who you think would be interested in this information, please share this article and encourage them to sign up for our Legislative Action Network.

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Importance of local laws to animal welfare

Much of Michigan Humane’s legislative advocacy work is focused on state legislation. But there are some issues that are not likely to gain statewide support, at least not initially. There are many animal-related concerns that are seen as matters more appropriate for local regulation.

Local ordinances, which are laws passed by a city council or county board of commissioners, can be an effective way to improve animal welfare in the city or county where they are passed. They can be tailored to a particular community’s needs, often with direct input from those who will be responsible for enforcing them. Such local laws may also inspire other communities to enact similar animal welfare protections, and if a number of municipalities enact an animal welfare ordinance, that may provide support for a future statewide law.

One example of a type of progressive animal welfare ordinance being passed in Michigan cities is a retail pet sale ban. These ordinances prohibit pet stores in the city in which they are passed from selling dogs and cats (and sometimes other species as well, such as rabbits, ferrets, reptiles, and birds). A handful of Michigan cities have passed such ordinances, including Eastpointe, New Baltimore, Fraser, Royal Oak and Harbor Springs. The purpose of these ordinances is to ensure that the community’s businesses are not an outlet for “puppy mills,” large-scale commercial breeders who put profits ahead of animal welfare, are not well regulated, and sell animals through pet stores.

There are generally exceptions in the ordinances for pet shops facilitating animal adoptions from shelters or rescues. An example of that is Michigan Humane’s offsite adoption partnerships.

Michigan Humane believes that local units of government should have the ability to respond to citizens’ concerns and decide whether they will allow pet retailers in their jurisdictions to source puppies, kittens, and other animals from commercial breeding operations. Cities that have already enacted ordinances preventing the retail sale of animals in pet shops have done so for the sake of the animals and also their residents, as these animals have made people sick and often come with very serious issues that require their new families to spend hundreds or even thousands of dollars for veterinary care and/or behavioral rehabilitation, and to face the ultimate heartbreak if their efforts are unsuccessful.   

When state legislation was introduced in the 2017-18 legislative session to prohibit local communities from regulating the retail sale of dogs, Michigan Humane and other animal welfare groups fought to protect the rights of local units of government to decide whether commercially bred puppies could be sold in pet stores in their communities. Gov. Snyder vetoed that legislation because he agreed that regulating pet sales is a matter for local control, and as a result, local units of government can pass retail pet sale bans.

St. Clair Shores became the most recent Michigan city to ban the retail sale of dogs, cats, rabbits and ferrets when its city council passed a retail pet sale ban back in February. Michigan Humane testified in support of the ordinance, which passed with a unanimous vote.

Michigan Humane supports the enactment of strong legislation that, if effectively enforced, can have a long-term, positive impact on animal welfare. We encourage and support the passage of local animal welfare ordinances through a variety of means, including resources on the advocacy page on our website.

We are going to keep working to improve animal welfare and create a more humane community while serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives. If you know someone who you think would be interested in this information, please encourage them to sign up for our Legislative Action Network.

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Understanding the rules of service animals and public transportation

As a follow up to our article about the places service dogs are allowed to go, this article will focus on transportation and service animals.

The Americans with Disabilities Act (ADA) prohibits public and private ground transportation providers from discriminating against people who have a disability. Title II, Subpart B applies to public transportation. Examples of public transportation include buses, passenger trains, and subways. Title III applies to private providers of transportation services to the public. This category would include taxis, airport shuttles, and intercity buses such as Greyhound. The U.S. Department of Transportation (DOT) is responsible for promulgating regulations to implement the transportation-related provisions of Titles II and III of the ADA. The DOT’s Federal Transit Authority (FTA) Office of Civil Rights shares enforcement of the regulations as applied to public transportation with the U.S. Department of Justice (DOJ), and the DOJ enforces the regulations as applied to private entities. Complaints may be filed with the transportation provider, the FTA Office of Civil Rights, and/or the DOJ Civil Rights Division.

The regulations require public and private transportation providers to allow service animals. However, the DOT and DOJ definitions of service animal differ. The DOT defines a service animal as:

…any guide dog, signal dog, or other animal individually trained to work or perform tasks for an individual with a disability, including, but not limited to, guiding individuals with impaired vision, alerting individuals with impaired hearing to intruders or sounds, providing minimal protection or rescue work, pulling a wheelchair, or fetching dropped items.

Like the DOJ definition, the DOT definition requires that the animal be trained to work or perform tasks for his or her handler. Unlike the DOJ definition, which restricts the definition to service dogs, the DOT definition allows that “other animal[s]” can be service animals. This distinction caused the FTA to caution that “members of the public may find that some service animals may no longer be considered service animals once they leave a transportation system.”

The key component of the service animal definition is that the animal must be trained to work or perform tasks for his or her handler. Emotional support animals, or ESAs, are excluded from the definition of service animals.

If an animal’s only function were to provide emotional support or comfort for the rider, for example, that animal would not fall under the regulatory training-based definition of a service animal. Simply providing comfort is something that an animal does passively, by its nature or through the perception of the owner.

A transit authority can decide to transport ESAs and even pets, but the regulations do not require them to do so. While the transit authority personnel may not require documentation that an animal is a service animal, they may ask two questions to ascertain if the animal is a qualifying service animal: “(1) is the animal a service animal required because of a disability? and (2) what work or task has the animal been trained to perform?”

To further complicate matters, if a person with a service animal wants to travel by plane, a different statute and set of regulations apply to the air carrier. The terminal and airport are covered by the ADA, but the air carrier and airplane are governed by the Air Carrier Access Act (ACAA). The ACAA prohibits discrimination on the basis of disability. The DOT regulations implementing the ACAA require that air carriers permit service dogs to accompany their handlers, but with some additional requirements.

While the previous regulation required air carriers to transport emotional support animals if certain requirements were met, the DOT regulations implementing the ACAA currently define a service animal as:

A dog, regardless of breed or type, that is individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Animal species other than dogs, emotional support animals, comfort animals, companionship animals, and service animals in training are not service animals for the purposes of this part.

This definition of service animal went into effect on January 22, 2021, along with other changes prompted by several factors, including:

(1) the increasing number of service animal complaints received from, and on behalf of, passengers with disabilities by the Department and by airlines; (2) the inconsistent definitions among Federal agencies of what constitutes a “service animal;” (3) the disruptions caused by requests to transport unusual species of animals onboard aircraft, which has eroded the public trust in legitimate service animals; (4) the increasing frequency of incidents of travelers fraudulently representing their pets as service animals; and (5) the reported increase in the incidents of misbehavior by emotional support animals. In addition, DOT…received multiple requests for the Department to regulate in this area.

Before the new definition of service animal went into effect, there were a number of cases that attracted media attention to the issue of ESAs on planes. Some of the more attention-grabbing ones involved an emotional support peacock and an emotional support squirrel. In its document issuing the final new rules on air travel with service animals, the DOT acknowledged the special “realities and limitations of air service” and said that “[a]ny requirement for the accommodation of passengers traveling with service animals onboard aircraft necessarily must be balanced against the health, safety, and mental and physical well-being of the other passengers and crew, and must not interfere with the safe and efficient operation of the aircraft.”

Airline personnel are allowed by regulation to identify a service animal by asking “if the animal is required to accompany the passenger because of a disability and what work or task the animal has been trained to perform.”  They can also determine whether a dog is a service animal by its behavior or physical indicators such as a harness or vest.  Air carriers are allowed to require that the service dog be leashed or tethered.

Air carriers are allowed to limit a passenger to two service dogs. They are also allowed to require that passengers who want to fly with a service dog to complete two formsa DOT form attesting to the animal’s health, behavior, and training; and, for flights lasting more than 8 hours, a DOT Service Animal Relief Attestation form stating that the animal will not need to relieve itself or will be able to do so in a sanitary manner. The regulations provide that an air carrier can refuse to transport a service dog under certain circumstances, including that the animal poses a direct threat to others’ health or safety.

The DOT recommends that a person who believes that his or her rights under the ACAA are being or were violated by an air carrier should ask to speak to a Complaints Resolution Official (CRO). “A CRO is the airline’s expert on disability accommodation issues. Airlines are required to make one available to you, at no cost, in person at the airport or by telephone during the times they are operating.” The person can also file a complaint through the airline and through the DOT.

While some regulatory changes have resulted in more consistency in the definition of service animal, there are still a myriad of service animal rules that that are applied by several responsible agencies. This creates confusion and poses challenges for people seeking the freedom that a service animal can provide. Please look for future articles exploring some of the other rules regarding service animals.

We are going to keep working to improve animal welfare and serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives. Stay updated on all of Michigan Humane’s advocacy efforts by joining our Legislative Action Network.

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Service dogs and public access under the Americans with Disabilities Act

Evidence of service dogs assisting humans who are facing challenges to gain their independence goes back centuries. A fresco discovered in the ruins of the ancient Roman city Herculaneum and dating to the first century A.D. depicts a blind person being led by a dog. Similar images of dogs leading the blind have been found in European and Chinese art created in the middle ages. 

A dog named Buddy, who was trained in Switzerland, is believed to be the first American guide dog. His trainer, Dorothy Eustis, and the blind man Buddy was trained to assist, Morris Frank, founded the guide dog school The Seeing Eye in Tennessee in 1929. Today, service dogs are trained to help people with a variety of physical and mental challenges. It is estimated that 500,000 service dogs assist people with disabilities in the United States.

Despite their long history and the prevalence of service dogs in American society, many people are unaware of the laws applicable to service dogs. This article will provide an overview of the rules pertaining to public access for service dogs under the federal Americans with Disabilities Act (ADA).

The ADA was enacted in 1990 and is enforced by the U.S. Department of Justice. Title II, subtitle A of the ADA prohibits public entities, such as state or local government, from discriminating against persons with disabilities. Title III of the ADA protects persons with disabilities from discrimination by places of public accommodation and commercial facilities, such as restaurants, hotels, and stores. The public places a person with a service dog is allowed to go are determined by the ADA and its related regulations.

The regulations implementing Title II and Title III of the ADA define a service animal as “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.”  (While this article focuses on service dogs, the ADA regulations in 28 C.F.R. § 35.136(i) and 28 C.F.R. 36.302(c)(9) also recognize the use of miniature horses that have been trained to perform tasks on behalf of a disabled person so long as certain criteria are met.)  The ADA does not restrict the definition of service dog by breed.

The key portion of the definition is that the animal be trained to do work or perform tasks on behalf of a disabled person. “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.”

Public entities and places of public accommodation are not allowed to ask a person with a service dog about the nature or extent of his or her disability. The regulations do allow two inquiries to be made as to whether the dog qualifies as a service animal. It is permissible to “ask if the animal is required because of a disability and what work or task the animal has been trained to perform.” However, these questions may not be asked if it is obvious that the animal is providing service or performing tasks for a disabled person. Service dogs do not need to be professionally trained, and the regulations do not allow public entities and places of public accommodation to ask for documentation that the animal “has been certified, trained, or licensed as a service animal.” The ADA does not require that the service dog wear an identifying vest, tag, or badge.

The ADA regulations require a public entity or public accommodation to “modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability.” For example, a restaurant that has a “no pets” policy is required to make an exception to that policy for a service dog. While this is the general rule, there are general defenses to the ADA and modifications need not be made if the entity can demonstrate that: (1) such modifications would fundamentally alter the nature of the entity’s goods, services, facilities, privileges, advantages, or accommodations; (2) the safe operation of the entity would be jeopardized; or (3) such modifications would result in an undue financial or administrative burden.

Barring these exceptions, a public entity must allow a person with a disability who has a service dog “in all areas of a public entity’s facilities where members of the public, participants in services, programs or activities, or invitees, as relevant, are allowed to go.” Places of public accommodation must allow a disabled person accompanied by a service dog “in all areas . . . where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.” The dog’s handler is responsible for supervising or caring for the service dog. Neither a public entity nor a public accommodation may ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.

There are two situations in which a public entity or a public accommodation may request that a disabled person remove his or her service animal from the premises. The first is when “(t)he animal is out of control and the animal’s handler does not take effective action to control it.” Regulations require that:

[a] service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal‘s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).

The second situation in which a service animal may be legally excluded is when “(t)he animal is not housebroken.”

A public entity that legally excludes a service animal must give the disabled person “the opportunity to participate in the service, program, or activity without having the service animal on the premises.” If a public accommodation properly excludes a service animal, it is required to “give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.”

If a person with a service dog believes he or she has been discriminated against in violation of the ADA, he or she may file a complaint with the U.S. Department of Justice or file a federal lawsuit.

Other federal statutes, such as the Fair Housing Act and the Air Carrier Access Act, and state law also apply to service animals. The rules and regulations, starting with the definition of a service animal, are not universal or consistent, contributing to the confusion regarding the correct response to service animals. Please look for future articles exploring some of the other rules regarding service animals. We are going to keep working to improve animal welfare and serving as a voice for the animals through advocacy. Together, we can continue to make a difference in animals’ lives.

If you know someone who you think would be interested in this information, please share and sign up for our Legislative Action Network.

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