Dogs in the Economy and Operation of the Peculiar Institution: Evidence from Slave State Case Law

An anti-slavery pamphleteer who called himself Iron Gray wrote: �On merciless fangs, the Slaveholder feels his �property� hangs.� In 1920, West Virginia Judge J.C. McWhorter, in perhaps the most influential essay ever written about bloodhound testimony, regretted that the history of tracking dogs was so intertwined with the history of slavery, but argued that at least when a dog tracked a slave, the slave could be identified by the master he ran away from. When used to track the unknown perpetrator of a crime, an overabundance of faith in the skills of dogs was persuading many courts that the person found at the end of the trail must always be guilty.

As I traced in Police and Military Dogs, Judge McWhorter began a strand of judicial skepticism regarding canine evidence that has continued down through Justices David Souter and Ruth Bader Ginsburg (both dissenting in Illinois v. Caballes, (2005)), as well as in the academic jurisprudence of Andrew Taslitz and, more recently, Leslie Shoebotham. Although McWhorter was concerned with the ability of dogs to identify criminals through tracking, current doubters have focused primarily on the reliability of dogs in detecting illegal drugs and explosives. In the interest of full disclosure, I should note that though I agree with the canine evidence skeptics on some issues, I do not consider myself to be one of them. I have argued for instance that scent lineups can be conducted in a sufficiently scientific manner as to justify their admission as evidence.

Slaves as Dogs

A case that did not involve dogs is nevertheless worth describing because of a canine analogy considered by the Kentucky Court of Appeals. Let us begin with the facts of Bosworth v Brand:

�The case, when stated most favorably for the verdict, is, that Bosworth permitted some fifty negroes to assemble and dance at an out-house; that a patrolling party surrounded the house about midnight, for the purpose of apprehending the negroes and breaking up the frolic; that the negroes refused to surrender when called upon so to do, and endeavored to make their escape; that one of the patrol, without any necessity for so doing, wantonly fired a pistol, loaded with balls and buck shot, into a dark room, crowded with negroes, and thereby killed the slave of Brand.�

Permitting the slaves to assemble was itself a minor offense, under a statute providing that �if any master, mistress, or overseer of a family, shall knowingly permit or suffer any slave, not belonging to him, or her, to be and remain upon his, or her, plantation above four hours at one time, without leave of the owner or overseer of such slave, he, she or they so permitting, shall forfeit and pay two dollars for every such offence; and every owner, or overseer, of a plantation, who shall so permit or suffer more than five negroes, or slaves, other than his or her own, to be and remain upon his or her plantation or quarter, at any one time, shall forfeit and pay five shillings, for each negro or slave, above that number: which said several forfeitures shall be to the informer, and recoverable, with costs, before any justice of the peace of the county where such offence shall be committed.�

The question before the court was whether Bosworth, by permitting the �frolic� and committing this offense, was liable to Brand for the killing of Brand�s slave. An analogy that the court considered is described in the following paragraph:

�By a post revolutionary English decision, the setter of a trap in which a dog was killed, was held responsible for the dog, because it was set so near to the ground of the dog's owner, that the bait could be smelt therefrom, and the dog did but obey his instinct in following the lure that was set for him�. [S]uppose the dog had been accidentally or wilfully killed by some third person, before he reached the trap, would the setter of the trap have then been responsible. Or, to make the cases more completely analogous, suppose (in lieu of the trap,) the bait had been merely fastened to a tree, and that, whilst in the act of eating the bait, he had been shot by a third person. How would the case then have gone? It is impossible to presume the setter of the bait could have been held liable. If not, then that case is conclusive of this; for it will he vain to attempt to distinguish them. The same law determines both. It was as illegal to lure the dog, as the negro, from the premises of his owner to those of another.� (emphasis added)

The court recognized that a �negro is not a mere brute, with an instinct in lieu of reasoning properties, and destitute of rational qualities, to restrain the impulse of his appetite,� so the analogy to a dog is thankfully not complete, yet the fact that it was made at all shows that at some psychological, and I fear judicial level, negroes could be considered dogs.

Working Tracking Dogs as a Business

Keeping tracking dogs could be quite profitable. The first plate, from The Suppressed Book about Slavery! is actually labeled "Bloodhound Business." The second plate is from a magazine, Puck, in 1859, showing John A. Logan holding a newspaper with a headline saying, "No Interference with Slave Hunters," several of which are behind him. Abraham Lincoln, William H. Seward, and Charles Sumner stand angry but helpless on the left. The third plate produces advertising notices from Clotel, or the President�s Daughter, an anti-slavery novel first published in 1853. (Click on images to enlarge.)

Slave hunters could own large numbers of dogs. In Goodwin v. The State, a man was prosecuted for the murder of a slave hunter who �owned a large pack of dogs, twelve or fifteen, and used to run negroes with them; they were very fierce.� The 1844 decision of the Mississippi court also contains a reference to the victim�s dogs hunting white persons, so presumably there were instances where criminals were sought by the dogs.

The anti-slavery movement emphasized the functions of dogs in describing the cruelties of slavery. Harriet Beacher Stowe (1852) described hunting slaves with dogs, saying the following about a slave named Scipio.

�Well, one day he knocked down the overseer and was fairly off into the swamps�. So they mustered out a party of some six or seven, with guns and dogs, for the hunt. People, you know, can get up just as much enthusiasm in hunting a man as a deer�.�

Stowe described Scipio fighting the dogs when they found him:

�[H]e fought the dogs right gallantly. He dashed them to right and left, and actually killed three of them with only his naked fists, when a shot from a gun brought him down, and he fell, wounded and bleeding�.�

Simon Legree described his dogs to Tom:

�Ye see what ye�d get, if ye try to run off. These yer dogs has been raised to track niggers; and they�d jest as soon chaw one on ye up as eat their supper.�

Stowe also knew that dogs could be used for punishing a slave by setting him up for the dogs to tear.

Clotel, the 1853 novel already referred to, has a scene where a fugitive climbs a tree to avoid being torn to pieces by dogs. The dogs remain below the fugitive until the hunters arrive, take him down and tie him up to return him to his master. This novel describes dogs on one plantation for hunting fugitives as follows:

"A kennel of bloodhounds; and such dogs I never saw before. They were of a species between the bloodhound and the foxhound, and were ferocious, gaunt, and savage-looking animals. They were part of a stock imported from Cuba, he informed me. They were kept in an iron cage, and fed on Indian corn bread. This kind of food, he said, made them eager for their business. Sometimes they would give the dogs meat, but it was always after they had been chasing a negro."

Training Tracking Dogs

Fanklin and Schweninger (1999) discuss the training of slave-hunting dogs:

�Frederick Law Olmsted [1856] observed that no particular breed was used in the hunt�bloodhounds, foxhounds, bulldogs, Scotch staghounds, curs�but slave hunters and planters had a method of training each breed to be effective. The dogs were locked up and �never allowed to see a negro except while training to catch him.� They were given the scent of a black man or woman�s shoe or article of clothing and taught to follow the scent. Slaves were sent out as trainees, and when the dogs treed them, they were given meat as a reward. �Afterwards they learn to follow any particular negro by scent.��

Training practices were thus similar to those used by the conquistadors for dogs used against the Aztecs and Incas. Slave traders who brought their cargo to America also used dogs, even in the African side of their operations. See Bake (1861). The fourth plate is an 1861 painting by Richard Andsell, now in the Liverpool Museum.

Right to Pursue Runaways with Dogs

Southern courts recognized a right of owners to pursue runaways. In Moran v. Davis, an 1855 Georgia case, Mariana Moran, had hired out her slave, Stephen, to Gardner Davis. Stephen had run away, and Davis employed a slave hunter named Hamblin to catch him. (The case was brought by Augustus B. Moran, as trustee for Mariana, presumably because of limitations on a woman�s ability to sue at law.)

Stephen plunged into a creek when pursued by the dogs and drowned. The question before the Georgia Supreme Court was whether Davis could pursue a slave he did not own with dogs, and the Court answered that he could �provided it be done with due degree of caution and circumspection.� The Court also noted that stale law made it �lawful for every person to take, apprehend and secure fugitive slaves,� and that a �person so arresting and delivering to the Jailor any runaway slave, is entitled to five dollars.�

The Court, writing five years before the Civil War, saw a larger economic issue:

�The South has lost, already, upwards of 60.000 slaves, worth between 25 and 30 millions of dollars. Instead, therefore, of relaxing the means allowed by law for the security and enjoyment of this species of property, the facilities afforded for its escape and the temptation and encouragement held out to induce it, constrain us, willingly or otherwise, to redouble our vigilance and to tighten the chords that bind the negro to his condition of servitude�a condition which is to last, if the Apocalypse be inspired, until the end of time; for the author of Revelation beheld, when the sixth seal was opened, and there was a great earthquake, and the sun became black as sackcloth of hair, and the moon became as blood, and the stars of heaven fell unto the earth, even as a fig tree casteth her untimely figs, when she is shaken of a mighty wind, and the heaven departed as a scroll; when it is rolled together and every mountain and island were moved out of their places; and the kings of the earth, and the great men, and the chief captains, and the mighty men, and every bondman (doulos, slave or servant) and every freeman, hid themselves in the dens and in the rocks of the mountains; and said to the mountains and rocks, fall on us and hide us from the face of him that sitteth on the throne and from the wrath of the lamb; for the great day of his wrath is come; and who shall be able to stand. (Rev. 6 ch. 12 to 17 verses, inclusive.)�

The court apparently believed that freeing slaves would bring on the end time.

An 1858 Louisiana case, Laparouse v. Rice, shows that slave hunters often did not give much thought to the risk of injuring their prey. The hunters had come across a runaway in a swamp and shot him. The explanation of why they shot is telling:

�I ordered him to stop three times, and hollowed as loud as I could; I was not more than twenty-five steps from him. So did defendant order him to stop. We were both afoot and had no dogs. If he had gone ten feet further he would have been out of sight. He was shot in the butt.� (emphasis added)

The court found the shooting justified. Apparently there might not have been a suit had the hunters brought dogs, because then they would not have needed to open fire in order to secure the fugitive, who had more value to them wounded or dead than escaped and free.

The fifth plate shows Iron Gray�s depiction of bloodhounds and the sixth shows his picture of fugitives.

Killing Slaves Who Were Not Fugitives

Although the slaves might not be able to defend themselves against slave hunters, the owner of a slave killed by a hunter might recover if he could establish that the deceased slave was not trying to escape. In Benjamin v. Davis, an 1851 decision, the Supreme Court of Louisiana considered the following circumstances of a slave hunt:

"[T]he defendants came to the house of [Ackley Perkins] and said they were going to hunt runaway negroes; they went down into [Ashley�s plantation] and were not long gone before [Perkins] saw them returning, one of them walking, and the negro boy Ned lying across one of the horses, shot. They brought him to [Perkins� house] and after some ineffectual attempts to staunch the blood, the negro was sent home to Benjamin�s his master, and the next day he died of his wounds.�

The hunters attempted to prove that Ned was a runaway and that he had used a knife to cut up some of the dogs. Despite the fact that the evidence for the defense was meager and self-serving, the jury chose to believe it and returned a verdict for the defendants. On appeal, the defendants argued the same facts, and noted that it �is lawful to fire upon runaway negroes who may be armed, and upon those who, when pursued, shall refuse to surrender.� The Louisiana Supreme Court did not buy the defense argument:

�The act charged against the defendants is satisfactorily proved, and they have failed to show the necessity which could alone have justified it. Armed, and prepared as they were, the shooting with ball or buck-shot was totally unjustifiable. The verdict of the jury is clearly erroneous, and the judgment must be reversed�. It is therefore ordered, that the judgment in this case be reversed. It is further ordered, that the plaintiff recover from the defendants, in solido, $350, with legal interest, from the 27th October, 1847, till paid, and costs in both courts.�

Ned�s master had sought $800, but had to settle for $350, the entire cost to the slave hunters.

In Dearing v. Moore, an 1855 Alabama case, James Williams was on his plantation when he heard dogs barking in a nearby thicket. He went to investigate and saw what he thought to be a camp of runaway slaves. He went and got John C. Moore, a slave hunter �who had a pack of dogs trained to run slaves.� They went to the camp, from which the dogs followed a trail until �they caught one negro man,� who told them about the place where he had separated from another slave. They took the escaped slave to that place, where the dogs again picked up a trail.

Moore apparently went on ahead of Williams and found another slave who, according to Moore, turned on him with a large stick, saying �he would die before he would be taken.� Moore obtained a pistol from a man named Robinson and pursued the slave to a swamp, where he �shot him just as the negro was turning on him.� He brought the slave out of the swamp, put him on a cart and carried him to Alex Dearing, his master, and sent for a physician. The slave, Bob, did not fully recover and died about a year afterwards.

It was not clear that Bob was actually trying to escape, or just fleeing from white men with dogs. The only testimony indicating Bob was running away came from Moore�s description of what Bob had said to him. This was self-serving and the question before the court was whether such testimony regarding what Bob had supposedly said to Moore should have been admitted as evidence. The trial court had admitted it, and the Alabama Supreme Court affirmed.

Dogs might be used to track a slave that who was not trying to escape but rather to go home to an original master. In Maury v. Coleman, an 1854 Alabama case, a slave who had been rented out by his owner, Phillips, left the man who had hired his services, Maury, and returned to Phillips. Maury, discovering the slave missing, �procured dogs accustomed to trailing negroes, and by means of the dogs, and in company with their owner, trailed the slave to his master�s house.� Phillips declined to honor his contract and return the slave to the man who had hired the slave's services, but did so later.

Deceiving Slaves

Slaves attempting to flee had to be concerned that not all those who would claim to help them were actually intending to do so. An 1851 case from the North Carolina Supreme Court, State v. Martin, described a man named Edmund Martin, who would steal slaves by convincing that he would take them to a free state, then sell them back into slavery. Martin testified that he had frequently been tracked by the dogs of slave hunters, �and had been compelled to stand in water up to his waist for an hour at a time in cold weather, to escape.� It is possible that Marin was actually an honest agent of the underground railroad and was making up the story of a deception to obtain a more favorable result from the North Carolina legal system.

Dogs Used to Coerce Confessions

In Simon (a slave) v. State, an 1859 case, the Mississippi Court of Errors and Appeals considered a confession of murder that a slave gave after being hunted by dogs. Simon had been convicted by a jury and sentenced to be hung. The slave�s lawyer argued on appeal that Simon's confession was not voluntary:

�When this confession was made, the prisoner had been chased for two miles, in a summer day, by negro dogs; he had been immersed in water; he had suffered the infliction of a blow over the head with the butt of a negro whip; he had been bitten by the negro dogs; he had been struck at for declining to speak; and had, after these things, travelled back a half mile, putting up several fences in the time, and being in the presence of, and in the custody of, armed men, and having at his heels a pack of negro dogs, whose teeth had recently lacerated his flesh, and being interrogated about the homicide by the very man who had before struck at him for not speaking, and being told by this man that it would be better for him to tell the whole truth about it, or about the matter, he confessed his guilt. Was this confession free and voluntary, or was it drawn out of the prisoner by fear, or hope to escape the immediate repetition of being bit and struck? Would he have made this confession, if he had not been so interrogated and admonished? What inducement was held out to him to make the confession? It was the admonition in form, but threat in fact, �It will be better for you to tell the whole truth about the matter.� Confessions made under such circumstances are inadmissible.�

The Court of Errors and Appeals agreed and remanded for a new trial.

In the 1855 Alabama case of Brister et al. (slaves) v. The State, a jury returned a verdict of guilty against four slaves for killing a ditcher for whom they worked digging ditches on plantations. Several others were acquitted. The 13 defendants were interrogated �by sixteen or seventeen white men, who went on the place [where the defendants were working] armed with double-barreled guns, negro whips and sticks, and accompanied by a pack of negro dogs, known to be such by defendants.� The suspects were separated for questioning, and some were whipped to obtain confessions. The Alabama Supreme Court said the prosecution had to show the confessions were voluntary. The majority determined that the confessions were improperly admitted into evidence, and the case was reversed and remanded.

Tracking in Criminal Cases

In Bob (a slave) v. The State, an 1858 Alabama case, dogs were used to track a criminal. Thomas Curtis, �a white person,� was riding home from an oyster supper at a friend�s house when he was shot by someone concealed in the bushes. The subsequent investigation is well described by the Alabama Supreme Court:

�Witnesses were introduced by the State, who proved that, two or three hours after the shooting, negro dogs were carried to the place where said Curtis said he was shot; that they immediately trailed off in the direction of his father's house, where the tracks of some one, made only a few hours before, were plainly discoverable. On the following morning, as some of the negroes of said Robert Curtis were suspected of being the perpetrators of the deed, Isaiah, one of said negroes, was taken by some of the neighbors, assembled for the purpose of ferreting out the offenders, to the place along and over which the dogs had passed the night before. This was known to Bob, the prisoner. They then returned immediately to the house, carrying with them an exact measurement of the length and size of the said tracks, when Bob and other negro men on the place were called up, and the size of their feet and shoes compared with the measure which had been taken. After nearly all the negroes had been called up, and a comparison had been made between said measure and their feet and shoes respectively, Bob was called into his master's house, (it being now evening, and he being fully aware of what had been going on all day,) in the presence of his master and mistress, with several of the neighbors who had assembled, when the measure of the said tracks was applied to the shoes which he was at that time wearing. On applying the measure to Bob's shoes, it was found that it fit in every particular. Several of those present exclaimed, that they were the shoes that made the tracks; to which exclamations the prisoner made no reply. The prisoner's counsel objected to these exclamations of the bystanders going to the jury; but the court permitted them to go to the jury in connection with the evidence that the prisoner made no reply, and the prisoner's counsel excepted. It was proved, that the shoes of the prisoner were the shoes he had on the night before when he first made his appearance�.

�Soon after it was discovered that the shoes which Bob was wearing corresponded so well with the measurement which had been taken of the tracks in the field, Bob was taken out by Joshua Morse, a son-in-law of his master, and some of the other neighbors, and severely whipped, and afterwards salted, by pouring the salt upon the wounds made by the blows inflicted.�

Bob was told that if he confessed, his master could sell him and he would not die, but if he did not confess, he would be hung since everyone believed he was guilty. Naturally, Bob confessed. Apparently this wasn�t enough for the local sheriff:

�A day or two after this, Joshua Morse and C. L. Watson, the sheriff, both of whom were present at the whipping given to Bob on the day after said Curtis was shot, and were active agents in all the proceedings had at the house of Robert Curtis after the shooting, up to the time of Bob's commitment, entered the prison, and approached Bob, with a leather strap made for the purpose of whipping negroes; and as soon as they entered, they ordered Bob to pull off his shirt and lie down. Bob thereupon immediately confessed that he was guilty of the offense of shooting said Curtis, and proceeded to state the facts connected with the same. Morse told him he wanted to hear none of his confessions, and then whipped him severely, without giving him any explanation as to the cause.�

Bob also made incriminating statements to three men who came to the window of his cell. The Alabama Supreme Court reversed, finding that some of the confessions should not have been admitted. Bob had been sentenced to death after an earlier trial, and it is unlikely his fate improved in the next trial.

In The Suppressed Book about Slavery!, the following tracking is described:

"On the 21st of March, 1853, while at dinner in a Public House, at Wabluck, Miss., a man was telling of having his saddle-girth cut; and said he got out his dogs (blood-hounds), and put them on the track, and followed to a hut, where they seized a Slave by the throat, whom they took to his 'Master' to whip him. The owner contended that the dog-testimony was not evidence, and that the man should not be whipped on the strength of it. But his captor, who had two friends with him, told the owner they were determined to whip him. Accordingly, they commenced whipping him by turns, till they had given him three hundred lashes. His owner then asked him, 'Did you cut it?' 'Yes, massa, I did.' His owner then beat him to death."

The final plate shows a poster for Uncle Tom's Cabin, where a slave who has been pursued by dogs is being beaten.

Dog Barks at Intruders, Resulting in Manslaughter

In an 1861 Alabama case, a dog warned a slave of the presence of disguised slave hunters, with disastrous consequences. In Isham (a slave) v. The State, the slave, the property of Captain W.F. Hanby, was tried for murder. The evidence was that on the night of the killing, three white men went to Hanby�s house �for the purpose of catching a runaway slave, who was said to be lurking about the place.� The three white men believed that Isham was harboring the runaway slave. The three men �disguised themselves, by blacking themselves, putting on old clothes.�

The men thus disguised approached �the negro house, and made a noise there, and then went to the corner of the house, and struck on it with a stick.� The dog barked and Isham tried to hiss it quiet, then coming around the house saw the men and demanded to know who they were. �A partner,� George Mansfield Hagood, one of the three blackened men said. Isham shot Hagood. One of the witnesses cried, �Don�t shoot, you have killed Mansfield.� Isham replied, �Lord, Massa George, why didn�t you speak?� Isham was arrested next morning. Evidence showed that Hanby had agreed that the three men should go to his house to see if there was a runaway being harbored by his slave.

The verdict of the jury was that Isham was guilty of voluntary manslaughter. Isham�s counsel argued on appeal that Isham had no malice of will. The deceased and those with him had disguised themselves as runaway slaves, and Isham had acted in defense of his master�s house and property. The Supreme Court ruled:

�A slave, who kills a white man, intending to kill a negro, is guilty of a criminal homicide in the degree in which he would have been guilty if the person slain had been a negro; and he is subject to the punishment prescribed for the commission of the offense upon a white person.� The judgment of the trial court was affirmed.

Helping Catch a Mad Dog Gets a Slave in Trouble

Slaves might be put at more risk than their masters in helping to kill a mad dog. In Dave v. The State, an 1853 Alabama case, a slave had been rented out by his master, Franklin Morgan, to John Cunningham. One evening, Morgan sent word to Dave that he needed help in killing a mad dog. The next morning, Cunningham found that Dave had not done his chores because he had gone to help Morgan. Cunningham said that he, not Morgan, was to be obeyed, �and ordered the boy Dave to drop his pantaloons.� Dave refused, saying �he had done nothing to be whipped for, and that he would not do it.� Cunningham ordered two other slaves to hold Dave, but Dave drew out a pocket knife and told the two slaves to keep away from him. Dave cut Cunningham 26 times, mostly superficially.

The Supreme Court of Alabama declared the law to be as follows:

�In the relation of master and slave, the master is entitled to the absolute dominion and control over the slave. The slave owes absolute and unconditional submission to the master. The master has the right to chastise and punish the slave in order to enforce his obedience, and to compel him to the performance of his duties. If the slave throws off the authority of the master, puts himself in a hostile attitude towards him, resists his dominion and control by physical force, evincing by his acts, while in a personal conflict with the master, a design to make that resistance effectual in escaping from his dominion and authority, the master has the right to employ such means, and so much force, to any extent, as will be effectual to subdue him. But if the slave is not resisting the master by physical force, or by hostile acts, but is simply in a state of disobedience, without personal violence towards the master, then the latter can only administer such punishment as is appropriate to the case, without endangering life or limb.�

The conviction was reversed and remanded for the trial court�s error in excluding certain testimony that might have been helpful to the defendant regarding his character.

Tracking Fugitives in the North

Lest it be assumed that slave-hunting dogs were only found in the South, The Suppressed Book About Slavery! states that dry-goods jobbers and other businesses in Ohio kept tracking dogs �to look after the interests of those in Kentucky, Tennessee, and other Slave States, with whom they �do business.�� The Suppressed Book cites a Cleveland Herald article of June 13, 1856, about such dogs killing sheep. One dog killed 90 in one night, and another 30. School children were attacked in the Township of Orange, Ohio, and one lost �a large piece from her hip.�

The Cleveland Plain Dealer reported in March 29, 1856, that an eight-year old boy was killed by a bloodhound that got loose. The Plain Dealer editorialized that the event should teach �the necessity of killing all Slaveholders� dogs, as it is dangerous to the safety of Women and Children to have such animals in a thickly-populated City like ours.� (emphasis in original) It is to be noted that the Plain Dealer did not criticize the presence of the dogs in the state for their use in capturing slaves, but rather because they were dangerous animals that might bring harm to white people.

Conclusion

As I described in a piece on the forest laws of medieval England, and in another about Robin Hood, dogs have often been caught up in the social hierarchies of men, both as victims and enforcers. The legal record sometimes provides the most detailed picture of what was going on.

In a piece about Audubon, I discussed the hunting practices of slaves on southern plantations. Audubon was writing well before the Civil War, however, and did not record the growing strife as the underground railroad and the public debate about slavery increased the desire of slaves to escape. Most of the cases included here occurred in the ten years before the War, and demonstrate the great risks that slaves were willing to take for their freedom.

As I discussed in Police and Military Dogs, it is no surprise that much of the early case law of tracking dogs came from southern courts. It is often well-reasoned law, as the judges had long lived with working dogs and had a better sense of their limitations than many northern lawyers. I do believe, however, that part of this knowledge comes from a dark source, and must be acknowledged.

Sources:
1. Bake, W.O. (1861). The History of Slavery and the Slave Trade. Columbus, Ohio.
2. Benjamin v. Davis, 6 La.Ann. 472 (1851).
3. Bob (a slave) v. The State, 32 Ala. 550 (1858).
4. Bosworth v Brand, 1 Select Cases of the Court of Appeals of Kentucky 377 (1833).
5. Brister et al. (slaves) v. The State, 26 Ala. 407 (1855).
6. Carleton, G.W. (1864). The Suppressed Book about Slavery! Carleton, Publisher, New York. A note on this book is necessary. Some references state that the book is anonymous and that Carleton was the publisher and perhaps the editor. Others indicate that he was the author. I have found no definitive discussion as of this posting. The term "bloodhound testimony" can be found in criminal cases from the end of the 19th century. This may have evolved from "dog testimony," which appears in this book and even in its index.
7. Brown, W.W. (1853). Clotel; or the President�s Daughter. Partridge & Oakey, London.
8. Dave v. The State, 22 Ala.Sup.Ct.Rptr. 23 (1853).
9. Dearing v. Moore, 26 Ala.Sup.Ct.Rpts 586 (1855).
10. Florida v. Jardines (U.S. Supreme Court Docket No. 11-564).
11. Franklin, J.H., and Schweninger, L. (1999). Runaway Slaves: Rebels on the Plantation. Oxford University Press.
12. Goodwin v. The State, 1 Mississippi State Cases 257 (1844).
13. Illinois v. Caballes, 543 U.S. 405 (2005).
14. Iron Gray (pseudonym for Abel Charles Thomas) (1864). The Gospel of Slavery: A Primer of Freedom. T.W. Strong, New York.
15. Isham (a slave) v. The State, Select Cases of the Supreme Court of Alabama 93 (1861).
16. Laparouse v. Rice, 13 La.Ann. 567 (1958.)
17. Lunney, L.A. (2009). Has the Fourth Amendment Gone to the Dogs? Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home. Oregon Law Review, 88, 829 (2009).
18. Maury v. Coleman, 24 Ala.Sup.Ct.Rpts 381 (1854).
19. McWhorter, J.C. (1920). The Bloodhound as a Witness. American Law Review, 54, 109.
20. Moran v. Davis, 18 Ga. 722 (1855).
21. Olmsted, F.L. (1856). A Journey in the Seaboard Slave States, With Remarks on Their Economy. Dix and Edwards, New York.
22. Pedigo v. Commonwealth, 103 Ky. 41 (1898). Judge Guffy, concurring and dissenting, also noted the connection between tracking and slavery, and considered the risks associated with the admission of bloodhound testimony.
23. Simon (a slave) v. State, 37 Miss. 288 (1859).
24. State v. Martin, 12 Sup.Ct.Rpts 157 (1851).
25. Stowe, H.B. (1852). Uncle Tom�s Cabin. John P. Jewett & Company, Cleveland.
26. Taslitz, A. (1990). Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup. Hastings Law Journal, 42, 15.

Thanks to L.E. Papet, Frances Breitkopf, Eric Krieger, and Yva Momatiuk for helpful comments and corrections. Thanks to the Library of Congress for making some of the plates reproduced here available to the public.

Tenants with PTSD Can Keep Dogs for Emotional Support in No-Pet Buildings and Condos

Update: On August 27, 2014, the Eleventh Circuit Court of Appeals affirmed the decision of the district court in this case. This important decision will be the subject of a separate blog. 


Three years ago we wrote an article for the American Bar Association, Service and Support Animals in Housing Law, in which we argued that the detailed rules that the Department of Housing and Urban Development had issued for HUD-assisted housing should apply generally to persons with disabilities seeking to live with assistance animals. Many courts have taken positions similar to ours, but a review of recent cases demonstrates that many landlords and condominium associations with no-pet policies continue to resist efforts of tenants to live with assistance animals, particularly dogs that are not trained and which provide only companionship or emotional support. Arguments that are being made in opposition to tenants seeking to live with such animals include:

1. Only service animals should be excepted from no-pets policies.
2. Untrained animals should be liable for pet security deposits because they are pets, even if they provide emotional support.
3. Assistance animals should comply with weight limits that apply to pets.
4. Animals that do not improve the tenant�s psychiatric condition, but only provide comfort, are merely pets for housing law purposes.
5. Occupants seeking to keep assistance animals can be required to answer all questions that the management group or condominium association deems relevant in determining whether an exception to a no-pet policy is to be granted.

Although the courts have generally been careful to recognize the rights of those who can demonstrate a need for an assistance animal, we continue to advise those with disabilities that they should attempt to be cooperative with the manager or condominium association responding to a request for a reasonable accommodation. Starting out with an adversarial position may not be necessary and may turn what should be a discussion into a shouting match, with significant legal costs to both sides.

The recent cases we discuss below suggest that lawyers and courts are in general becoming sophisticated in applying service and assistance animal law. Also, individuals trying to keep animals that are in danger of being evicted are often able to receive help and advice from state and local housing assistance and anti-discrimination organizations with professionals or counselors familiar with assistance animal law.

HUD Policy on HUD-Assisted Housing Extended to General Housing Case

In Overlook Mutual Homes, Inc. v. Spencer, 666 F.Supp.2d 850 (S.D. Ohio 2009), residents complained that the Spencers� dog was barking in their dwelling. Overlook Mutual Homes, Inc., sent a written warning to the Spencers stating that they were violating the building�s no-pet policy. Initially the Spencers said that the dog had been removed, but then they visited the Miami Valley Fair Housing Center, whose president sent a letter to Overlook requesting a reasonable accommodation for Scooby, a neutered male Cockapoo. The letter stated that �Lynsey [the Spencer�s daughter] was currently receiving psychological counseling and that her psychologist had recommended that Lynsey have a companion/service dog to facilitate her treatment.�

This was confirmed by Lynsey�s treating psychologist, who provided a statement that, as a result of her assessment and counseling, she had recommended that Linsey �have a service dog to facilitate treatment.�

Counsel for Overlook requested additional information but agreed to refrain from eviction proceedings pending receipt of the information. The Spencers provided some information but Overlook�s attorney said it was inadequate. Counsel for the Spencers then stated his concern with the invasiveness of the inquiry into Linsey�s medical records. A conference call with Linsey�s treating psychologist was proposed but apparently never took place.

Overlook filed an action seeking to compel additional information from the Spencers, but also asking for a declaration that Scooby was not a service animal and did not qualify as a reasonable accommodation for purposes of waiving Overlook�s no-pet rule. The Spencers responded that Overlook was violating the Fair Housing Act and Ohio�s fair housing statute (Ohio Revised Code 4112.02(H)). Overlook moved for summary judgment.

To prevail on a claim of housing discrimination because of a handicap under 42 U.S.C. 3604, the plaintiff must prove five things: (1) a handicap, (2) the defendant knew or should reasonably be expected to know of the handicap, (3) accommodation may be necessary to afford the handicapped person an equal opportunity to use and enjoy the dwelling, (4) the accommodation is reasonable, and (5) the defendant refused to make the requested accommodation. In the Sixth Circuit, which includes Ohio where this case arose, the third requirement is not �may be� but �is��the accommodation must be necessary. Howard v. City of Beavercreek, 276 F.3d 802 (6th Cir. 2002).

The federal district court concluded that pet policies of Overlook must comply with the Fair Housing Act. The court noted:

�[T]he Department of Housing and Urban Development (�HUD�) and the Department of Justice (�DOJ�) indicated in their Joint Statement on Reasonable Accommodations under the FHA [Fair Housing Act] that the provider of housing is entitled to obtain only that information necessary to determine whether the requested accommodation is necessary because of a disability. Construing the evidence most strongly in favor of the Spencers, the Court concludes that there is a genuine issue of material fact on the issue of whether the information sought by Overlook was necessary. Overlook initiated this litigation without taking advantage of the Spencers' offer to allow its counsel to participate in a conference call with their counsel and Hoefflin, Lynsey's treating psychologist. During that conference call, Overlook's counsel would have been permitted to question Hoefflin on Lynsey's disability and her need for Scooby. Consequently, there is a genuine issue of material fact as to whether Overlook was offered the opportunity to obtain the necessary information, an opportunity which it unilaterally chose to disregard.�

Therefore, the court rejected Overlook�s contention that it was entitled to summary judgment because it could set pet policies for its tenants and obtain the information it deemed necessary to evaluate the appropriateness of a tenant�s request for a waiver of the no-pet rule.

Overlook also asserted that an animal must have individual training to qualify as a service animal. Overlook was essentially arguing the Department of Justice regulations, rather than those issued by the Department of Housing and Urban Development, should apply in a housing situation. Scooby was not individually trained. The court stated:

�Simply stated, there is a difference between not requiring the owner of a movie theater to allow a customer to bring her emotional support dog, which is not a service animal, into the theater to watch a two-hour movie, an ADA-type issue, on one the hand, and permitting the provider of housing to refuse to allow a renter to keep such an animal in her apartment in order to provide emotional support to her and to assist her to cope with her depression, an FHA-type issue, on the other�. HUD has declined to limit its regulations on keeping animals to those that have been individually trained, unlike the regulations implementing the ADA.�

The court acknowledged that HUD�s perspective on emotional support animals applies only to HUD-assisted public housing, but said that �the rationale in support thereof is equally applicable to all types of housing regulated by the FHA.� The court therefore rejected Overlook�s assertion that it was entitled to summary judgment because Scooby was not individually trained.

Constructive Denial of Reasonable Accommodation Request

In Bhogaita v. Altamonte Heights Condominium Association, Inc., 2012 WL 10511 (M.D.Fla. 2012), Ajit Bhogaita, a veteran of the U.S. Air Force, suffered from post-traumatic stress disorder and lived in a condominium unit operated by the defendant Condominium Association, which had a 25 pound limit on pets. The Association sent Bhogaita a letter demanding that he remove Kane, his dog, as being in violation of that limit.

Bhogaita forwarded a note from his �treating medical professional,� Dr. Li, stating:

�Due to mental illness, [Bhogaita] has certain limitations regarding social interaction and coping with stress and anxiety. In order to help alleviate these difficulties, and to enhance his ability to live independently and to fully use and enjoy the dwelling unit, I am prescribing an emotional support animal that will assist [Bhogaita] in coping with his disability.�

A second note, also written by Dr. Li, was sent to AHCA a few days later, stating:

�I am prescribing an emotional support animal that will assist [Bhogaita] in coping with his disability, specifically his dog, Kane. [Bhogaita] has therapeutic relationship with this specific dog, Kane. As an emotional support animal, Kane serves to ameliorate otherwise difficult to manage day to day psychiatric symptoms in [Bhogaita].�

The Association then requested the following information from Bhogaita:

1. What is the exact nature of your impairment? How does it substantially limit a major life activity?
2. How long have you been receiving treatment for this specific impairment?
3. How many sessions have you had with Dr. Li?
4. What specific training has your dog received?
5. Why does it require a dog over 25 pounds to afford you an equal opportunity to use and enjoy your dwelling?

Bhogaita sent a third note from Dr. Li, which stated:

�[Bhogaita] has certain limitations regarding social interaction and coping with stress and anxiety. This limits his ability to work directly with other people, a major life activity ... He is able to work with the assistance of his emotional support animal. Otherwise his social interactions would be so overwhelming that he would be unable to perform work of any kind.�

The Association responded by again asking for more information on Bhogaita�s disabilities. Bhogaita may have also sent a letter suggesting the dog provided physical support, which would require a large dog, but since the letter was not in materials filed with the court, it was not further discussed. The Association asked for information about any training Kane had successfully completed. It also asked for proof that a dog weighing more than 25 pounds was needed.

Bhogaita filed complaints with HUD and the Florida Commission on Human Relations, and both issued a finding of cause in January 2011. Bhogaita filed a lawsuit in federal court in October 2011. The complaint claimed failure to accommodate and discrimination under 42 U.S.C. 3604(f)(3)(B) and 3604(f)(2) respectively, as well as discrimination under Florida state law.

The Association filed a motion to dismiss. To withstand the motion, Bhogaita had to establish (1) disability under the FHA, (2) a request for reasonable accommodation, (3) the accommodation is necessary to afford him an opportunity to use and enjoy the dwelling, and (4) the requested accommodation was refused.

The district court determined that Bhogaita�s letters and Dr. Li�s notes established a disability, and that a reasonable accommodation was requested and necessary for Bhogaita to enjoy the dwelling. The court then stated: �By persisting in its intrusive quest for more�and largely irrelevant�information, AHCA constructively denied Bhogaita�s request.�

The court did, however, dismiss the second count of Bhogaita�s suit, having to do with discrimination, as �merely an attempt to characterize AHCA�s request for additional information as a separate cognizable injury under the FHA. There appears to be no basis in the statute for such a claim.� The action could proceed as to the failure to grant a reasonable accommodation. The court seems predisposed to believe that there was such a failure.

The better logic is that a weight limit for pets should not apply to a service animal, even if the animal�s function is not specifically correlated to its size, but it is not clear how�or if�this issue will be dealt with by the court.

Failure to Provide Supporting Evidence Loses Case for Condominium Owner

In Lucas v. Riverside Park Condominiums Unit Owners Association, 2009 N.D. 217, 776 N.W.2d 801 (2009), A. William Lucas owned a unit in Riverside Park Association�s Condominiums in Bismarck, North Dakota. A dog owned by Lucas�s former wife would visit him, for which the Association eventually sought an injunction.

After the dispute had gone on for some time, Lucas changed tactics and sought an accommodation so he could keep an �assistive therapeutic companion animal (dog)� in his unit. The request included a letter from a clinical psychologist stating Lucas needed �a therapeutic companion assistive animal.� A second letter from a physician referred to a prescription for a therapeutic pet �as a medically needed part of his treatment.� The Association denied the request.

Lucas made two more requests that were also denied and then filed a lawsuit seeking damages and injunctive relief. The Association moved to dismiss.

Lucas then sent a fourth request for an accommodation, to which the Association�s attorney responded with a letter stating in part:

�The information you have provided the Association is insufficient to support your request for an accommodation. The Association needs additional information from you before it can decide whether to grant or deny your request. Please provide the following additional information from your healthcare provider: 1) a description of the claimed disability; 2) the date that you were first diagnosed or treated for the disability; 3) whether the claimed disability was treated or diagnosed prior to November 10, 2003 and, if so, a description of how the disability has changed since November 10, 2003; 4) an explanation from your healthcare providers of the relationship between your disability and your need for a �therapeutic companion service animal;� 5) an explanation from your healthcare providers as to why allowing you to keep a �therapeutic companion service animal� is a reasonable accommodation for your disability; and 6) a description of the �therapeutic companion service animal� you propose keeping at your unit, including any special training the dog has received.�

The significance of November 10, 2003, was not explained, but the dispute, and various legal developments, went on for at least six years.

Lucas responded by saying that he would provide additional information, but complaining that information previously supplied had not been kept confidential. Lucas sought assurances that the additional information he would provide would be kept confidential. Lucas had insisted, for instance, that he be provided with lists of all persons who had access to his information. He apparently believed that some information he had provided earlier had been leaked to tenants not involved in the matter. The Association returned the information supplied by Lucas in a sealed envelope, specifying that it would not agree to his terms for confidentiality.

On cross motions for summary judgment, the trial court granted the Association�s motion, determining that Lucas had failed to provide competent evidence that his disability status had changed in regard to his first three requests for accommodation or that the Association�s conduct had caused him emotional distress. The following costs were awarded by the trial court:

�The court awarded the Association $926.30 as a sanction for Lucas's failure to appear at a deposition; $5,834.94 in costs and attorney fees for its defense of his claim in his complaint and amended complaint based on the first three requests for accommodation; and $16,597.21 in costs and attorney fees for its defense of his claim in his second amended complaint based on the fourth request for accommodation.�

The court reviewed prior case law on whether training was required for an animal for which a reasonable accommodation was being sought. (See Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.) The court noted: �Whether the animal is trained, courts agree there must be a showing how the animal will affirmatively enhance a disabled plaintiff�s quality of life by ameliorating the effects of the disability.� The court added: �Courts also agree a defendant may request, and indeed may have a duty to request, additional information from the plaintiff reasonably necessary to make a meaningful review and an informed decision whether the animal is necessary to ameliorate the disability.�

The trial court granted summary judgment on Lucas�s first three requests, and the Supreme Court of North Dakota agreed that he had �failed to raise a genuine issue of material fact� regarding those claims. As to the fourth request, the Supreme Court stated:

�Here, Lucas's fourth request to the Association for an accommodation was submitted with forms containing identical statements from two physicians asking the Association �[t]o permit A. William to keep, maintain, and raise an assistive therapeutic companion service animal (dog). It is also my opinion that there has been a significant change in Mr. Lucas' health (disability status) since the last time he was examined by me.� Under the case law on reasonable accommodations, these conclusory and ambiguous statements are insufficient to raise a genuine issue of material fact that an accommodation is necessary to afford Lucas an equal opportunity to enjoy his dwelling�. Because of the conclusory and ambiguous nature of Lucas's documents in support of his request, the Association was justified in seeking additional information to enable it to make a meaningful review of and an informed decision on his request. In response to the Association's request, Lucas submitted additional information but would not allow it to be reviewed unless the Association agreed to abide by several conditions.�

The Supreme Court agreed with the trial court that Lucas�s request that the Association keep a list of any person who had possession or viewed Lucas�s medical records was unreasonable. Therefore, the Supreme Court concluded that dismissal was proper, both as to the reasonable accommodation claim and the claim for intentional infliction of emotional distress.

As to the award of costs, the Supreme Court held that the award of $926.30 was appropriate because Lucas continually said that deposition dates were unacceptable and failed to give any alternative dates. The court also upheld the award of $5,834.94 for costs and attorney�s fees incurred by the Association based on the first three requests for accommodation, but declined to affirm the award of $16,597.21 based on the fourth claim. The Supreme Court found the fourth claim �not so lacking in fact or law that a judgment in his favor was beyond expectation by a reasonable person.� Thus, the Court reversed the trial court�s award of this amount.

The North Dakota Supreme Court�s opinion was not a substantive determination of whether Lucas�s dog could have qualified for a reasonable accommodation. Rather, it shows that failure to provide adequate information in support of an application for a reasonable accommodation can justify a landlord or condominium association in denying a reasonable accommodation request. Planting one�s feet in the ground and refusing to budge can be a bad trial tactic.

No Security Deposit for Assistance Animals

In Intermountain Fair Housing Council v. CVE Falls Park, LLC, 2011 WL 2945824 (D.Idaho 2011), a woman applied for an apartment at Falls Park Apartments. Intermountain helps people who believe they have been victims of housing discrimination based on �race, color, sex, religion, national origin, familial status, or disability.� One of Intermountain�s �testers� called up Falls Park Apartments (�CVE�) expressing interest in a vacant apartment and stating he had a service animal, a dog. The representative said there would be a $900 deposit for the dog. A second tester, giving a slightly different story about a �support animal� was also told there would be a $900 deposit.

Intermountain filed an administrative complaint against CVE with the U.S. Department of Housing and Urban Development (�HUD�), but withdrew the complaint after concluding going to court would be more effective. Intermountain then filed a complaint with the Idaho federal district court, alleging violations of the Fair Housing Act and negligence.

Even though Intermountain�s testers were not actually seeking to live in the vacant apartments, an organization that fights discrimination can sue if it can demonstrate a personal stake in the controversy by showing �(1) frustration of its organizational mission; and (2) diversion of its resources to combat the particular housing discrimination in question.� Smith v. Pacific Properties & Development Corporation, 358 F.3d 1097 (9th Cir. 2004). The district court stated that �CVE has not provided the Court with any reason to doubt Intermountain�s alleged injuries.�

As to discrimination involving a service animal, the district court summarized positions of HUD and the Department of Justice as follows:

�Illustrative of such [discrimination based on disability] would be an apartment manager �refus[ing] to permit [a blind] applicant to live in the apartment with a seeing eye dog because, without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy the dwelling.� 24 C.F.R. � 204(b), Example (1). HUD and the United States Department of Justice have further clarified that a �housing provider may not require the applicant to pay a fee or a security deposit as a condition of allowing the applicant to keep the assistance animal.� Joint Statement of the Dept. of Housing and Urban Dev. and the Dept. of Justice, �Reasonable Accommodations under the Fair Housing Act,� at p. 9, � 11, Example 2 (May 17, 2004). �However, if a tenant's assistance animal causes damage to the applicant's unit or the common areas of the dwelling, the housing provider may charge the tenant for the cost of repairing the damage ... if it is the provider's practice to assess tenants for any damage they cause to the premises.��

Thus, a fee cannot be imposed for use of an assistance animal, though the owner is responsible for damages caused by the animal.

CVE contested the authoritative value of the HUD regulations and the Joint Statement, but the federal court said that �the definition of discrimination developed by HUD is authoritative� and the �regulations and illustrations require no lengthy inferential leaps.� The court concluded that a plain reading of the anti-discrimination law �suggests that imposing an additional security deposit for a service animal made necessary by a tenant�s handicap is discriminatory. Requiring such a deposit constitutes a failure to provide the reasonable accommodation of waiving a general pet deposit or no-pet policy.�

The transcripts of Intermountain�s testers conversations with CVE personnel were sufficient to show that CVE intended to impose a security deposit for a service or assistance animal:

�Absent controverting evidence from CVE, it would be easy to infer that CVE is unwilling to make reasonable accommodations for handicapped individuals with prescribed service animals or that CVE is seeking to discourage such individuals from applying for tenancy. For example, after Ms. House indicated that she had a �prescription� for her service animal, Tina Smithson stated that there would be an additional �nine hundred dollar deposit on the dog.� � Ms. House asked, �With the doctor's note, right?� � Tina Smithson confirmed, �Right.� � Similarly, when Ms. Mabbutt asked about their policy on �support animals,� Tina Smithson responded, �Yeah. It's a nine hundred dollar pet deposit.��

CVE claimed that its representative was only trying to communicate its general policy on animals, and that CVE does grant reasonable accommodations to individuals with disabilities. Since the court considered this argument possible, it did grant summary judgment. Although technically a victory for CVE, the victory was Pyrrhic and it can be safely assumed that CVE will not attempt to impose security deposits on service animals in the future.

Different Fees for Pets, Untrained Assistance Animals, and Service Animals

In Fair Housing of the Dakotas, Inc. v. Goldmark Property Management, Inc., 778 F.Supp.2d 1028 (D.N.D. 2011), Goldmark Property Management imposed an application fee, non-refundable deposit, and monthly charge on tenants with disabilities who resided with a non-specially trained assistance animal, but waived the fee for tenants with disabilities who resided with trained assistance animals. Fair Housing of the Dakotas (�FHD�), the plaintiff, is a nonprofoit corporation that works to end housing discrimination.

For pet-friendly buildings managed by Goldmark, pet owners must pay a non-refundable fee and a monthly pet charge. The fee is waived for trained assistance animals in either pet-friendly or no-pet buildings. In 2008, Goldmark began charging a non-refundable fee and monthly pet charge for �non-specially trained� assistance animals, which it also called �companion pets.� The fee was lower than the pet fees imposed on pet owners without disability issues. Goldmark contented that the fee was necessary to cover �steam cleaning, carpet replacement, subfloor resealing, baseboard damage, sheet rock damage, vinyl damage, blind replacement, damage to grounds and shrubbery, common area cleaning, odor removal, and labor for feces pickup, and the �non-quantifiable aesthetic loss due to discolored snow and grounds by common sidewalks and exterior common areas.��

A charge for yellow snow is certainly creative. The fees were as follows:

�For a dog, the non-refundable fee is $300 and the monthly charge is $30. For a cat, the non-refundable fee is $200 and the monthly charge is $20. For a non-specially trained assistance dog, the non-refundable fee is $200 and the monthly charge is $20. For a non-specially trained assistance cat, the non-refundable fee is $100 and the monthly charge is $10.�

Some tenants with non-specially trained dogs could not afford the monthly fee.

Someone wishing to live with an assistance animal had to submit an application and received a form to be completed and signed by a physician, psychiatrist, or psychologist. In 2009, a cover letter was added, informing the applicant that the form �needs to be completed by a qualified professional and at a minimum needs to be counter-signed by a treating physician or psychologist.� The owner of a service animal was to inform Goldmark if the assistance animal required special training, though �special training� was not defined. If the prospective tenant said the animal had training, this was accepted by Goldmark as true.

The Idaho federal district court disagreed with Goldmark�s position that the Fair Housing Act only applies to specially trained assistance animals. The court noted that other courts that had required specialized training before a pet constituted a reasonable accommodation under the Fair Housing Act had done so by incorporating concepts from the Americans with Disabilities Act. Courts not requiring specialized training largely relied on HUD regulations. (See discussion of case histories in Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.)

In the preamble to regulations issued in 2008, HUD stated that the �use of assistive animals, also referred to as �service animals,� �support animals,� �support animals,� �assistance animals,� or �therapy animals,� is governed by reasonable accommodation law.� The North Dakota federal district court referenced this broad inclusion of assistance animals under reasonable accommodation law, and concluded:

�While HUD's interpretation applies only to HUD-assisted public housing, the Court finds the rationale applies equally to all types of housing regulated by the FHA. Imposing a requirement that only animals with specialized training can be deemed �a reasonable accommodation� in the housing context has the effect of discriminating on the basis of disability. Under such an interpretation, landlords would be required to make a reasonable accommodation for individuals with physical disabilities, such as those that are blind or hearing impaired, but would not necessarily have to accommodate those with a mental disability-related need for support, such as depression or anxiety. A determination that animals need not have specialized training to fall within the purview of the FHA ensures the equal treatment of all persons with disabilities who need assistance animals in residential housing. Such an interpretation is consistent with the plain language of the statute, HUD's regulations, and the DOJ's position.�

Thus, the court held that �the FHA encompasses all types of assistance animals regardless of training, including those that ameliorate a physical disability and those that ameliorate a mental disability.� The court also concluded that the �Joint Statement of HUD and the DOJ on reasonable accommodations under the FHA makes clear that housing providers cannot impose additional fees as a condition to granting an accommodation, including accommodations for assistance animals.�

Though the court was only dealing with motions for summary judgment, it may be presumed that Goldmark changed its policy on untrained assistance animals, which would include emotional support animals.

Dog Obtained Partially for Protection Could Require Reasonable Accommodation 

In Iowa ex rel. Henderson v. Des Moines Municipal Housing Agency, 791 N.W.2d 710 (Ct. App. 2010), Carol Henderson leased a unit from the Des Moines Municipal Housing Agency with her daughter. Tenants were permitted to have pets, but needed to obtain a permit from the Agency. Pets could not weigh above 20 pounds, and only one pet was allowed per household. The two women obtained two dogs after some attempted break-ins, each weighing more than 90 pounds.

When a housing inspector became aware of the dogs, the tenants were given 15 days to comply with the no-pet policy of their rental agreement. Henderson requested that the dogs be considered service animals, describing her fears from the break-ins and the memories that the break-ins brought back of her abusive husband. Henderson obtained a letter from Dr. Ryan Coppola of Bradlawns Medical Center Emergency Services, stating: �Please allow patient to keep dogs for safety reasons & protections secondary to PTSD.�

The Agency sent Henderson a letter saying that it was in receipt of her request for a reasonable accommodation but that �these pets do not meet the qualifications for a service animal.� Henderson was given 10 days to remove the dogs. The Agency provided no information about what it considered to be the qualifications for a service animal. Henderson asked what qualifications were required. The Agency directed her to the Animal Rescue League, which in turn directed her to an employee of the Iowa Division of Persons with Disabilities, who wrote a letter on her behalf to the Agency.

Henderson obtained another letter from Dr. Jerilyn Lundberg, who stated:

�Carol Henderson has been diagnosed with post-traumatic stress disorder and has been assaulted several times. She has self trained a service dog to assist her with tasks around the home such as turning on the lights when she enters a room and retrieving her light instrument as well as acknowledging suspicious persons on the property. She has had one circumstance already in which her service dog has chased away a potential offender.�

This is one of the few cases in American law that refers to self-training of a service animal.

Henderson�s daughter and the daughter�s dog moved out, and Henderson filed a complaint with the Iowa Civil Rights Commission. Dr. Lundberg wrote another letter, stating:

�Carol Henderson is under my care. She is the victim of a violent crime and has psychiatric diagnoses related to that. She is presently also in the process of evaluation and treatment of these psychiatric disorders. She has a self-trained service companion that lives with her. This animal plays an important part in her recovery and in her psychological well being at this time. In my opinion, removal of the animal would impede the process of recovery.�

A psychotherapist working with Henderson also wrote a letter to the Civil Rights Commission, stating:

�As you may recall, Carol was diagnosed with Post Traumatic Stress Disorder�(309.81) by Dr. Lundberg. Carol underwent Psychiatric review with Dr. Margaret Shin/MD on April 7, 2005. Carol was diagnosed with Adjustment Disorder with Depressed Mood-309.00. Carol has completed some psychotherapy sessions with this clinician in the past few weeks and she will remain in services. Carol has essentially just begun treatment. She is prone to emotional outbursts and is often overwhelmed by the events at hand. She cannot fully care for herself, in terms of full-time employment, primarily due to her tendency to isolate and suffer with migraines. Her lack of self-care has led to a mental health commitment by family members as recent as 2003. Carol displays characteristics of one who has been traumatized. Her former husband beat her face against a pile of rocks/concrete causing a good deal of damage to the facial region. To this day, Carol has a lack of interest or desire to participate in important social activities. She remains apart from others and is estranged from her parents. Additionally, she is cautious and has not developed trust in others. Carol has been advised to apply for disability and is proceeding with that effort. It is my feeling that her depression will eventually be seen as more serious, as she continues with the treatment process. Dr. Lundberg has urged Carol to continue with a service animal and has advised that it is essential to Carol's emotional health. Please consider her status carefully in regards to future housing options.�

The numbers in the letter are taken from DSM-IV, Diagnostic and Statistical Manual of Mental Disorders.

In 2005, Iowa filed an action for declaratory judgment, permanent injunctive relief, and damages on behalf of Henderson in district court. An administrative law judge determined probable cause existed to support Henderson�s allegations of discrimination based on disability. Nevertheless, the district court granted the Agency�s motion for summary judgment.

The appellate court reversed, finding that �reasonable minds could differ as to whether Henderson�s requested accommodation of a service animal was reasonable in light of her claimed mental illness.� On remand, after a jury trial, the district court directed a verdict in favor of the defendants.

On a second appeal, the appellate court concluded that there was sufficient evidence of Henderson�s mental impairment as not to support the trial court�s issuance of a directed verdict. Enough evidence was presented that �a reasonable jury could find that the Agency knew or reasonably should have been expected to know of Henderson�s disability.�

As to the necessity of the accommodation for Henderson, the trial court ruled that the evidence was insufficient to show how the dog would address or alleviate the plaintiff�s disability. The appellate court determined, however, that the �plaintiff is not required to show the accommodation alleviates the disability itself; rather, the accommodation must ��affirmatively enhance a disabled plaintiff�s quality of life by ameliorating the effects of the disability.�� The court further stated:

�The State produced evidence that some of the effects of Henderson's posttraumatic stress disorder and depression include Henderson being very fearful and hyper vigilant, and being unable to sleep, all of which interfered with her use and enjoyment of the dwelling. Henderson testified she had trained Sam to turn on lights for her, to fetch her keys and phone, and to alert her when strangers come to the apartment. These tasks allowed Henderson to feel secure about her surroundings and �not be afraid.� Koch testified Henderson �gained a sense of being protected, a sense of emotional strength from the animal being near her.� Dr. Lundberg sent a letter stating the �animal plays an important part in her recovery and in her psychological well being at this time.� Thus the State presented evidence from which a reasonable jury could find that the requested accommodation (Sam) was �necessary to afford [Henderson] equal opportunity to use and enjoy [her] dwelling.� The trial court erred in directing a verdict in defendants' favor where a factual question existed.� The jury should have also been able to determine �whether the accommodation requested was reasonable.�

The case was remanded for a second trial.

Although some of the issues raised on appeal were not finally determined by the appellate court, it is clear that an animal that provides emotional support, including protection of someone who has been traumatized by beatings of a husband, can be the basis of a reasonable accommodation argument. The fact that the dog works partly as a guard dog does not detract from this argument whatsoever.

Conclusion

More housing disputes reach the courts than any other matters pertaining to specially trained dogs that provide medical and psychological benefits. The reason for this is easy to find. Taking a service animal into a restaurant may encounter some resistance, but the matter will usually be settled quickly and without a lawsuit. The same applies to taking a dog onto an airplane. With housing, on the other hand, the owner of a service or assistance animal may have no choice but to fight if a building that once had a pet-friendly policy begins to prohibit animals. Similarly, if a person with such a dog loses his job and must move back in with his parents, he may have to argue that the animal deserves to be excepted from a no-pets policy that has never been a problem for the parents.

Naturally buildings and landlords are skeptical when a dog that was never before called a service or assistance animal suddenly gets a label that precludes its easy eviction from a building. A treating psychologist may be asked to provide a letter in support of a patient keeping a dog, even though the dog was never part of the therapeutic regimen recommended by the psychologist. A separate issue arises when the psychologist�s letter is so tepid as to call into question how important the dog really is to a tenant�s well-being. On the other hand, medical and psychological professionals are increasingly aware that saying anything that cannot be supported may lead to a grueling cross-examination in a subsequent trial.

Not all jurisdictions have had cases considering the relationship of emotional support animals to reasonable accommodation standards, so anyone facing such an issue should take the time to find out what law may apply in the state where they live. Nevertheless, the courts are generally parsing the issues well, and it can be expected that this area of law will continue to refine itself as more fact situations are presented in a legal context.

This blog was written by John Ensminger and Frances Breitkopf. The authors thank Dr. Joan Esnayra and Dr. James Lawrence Thomas for helpful comments.

Additional Sources:
1. Bazenlon Center. Fair Housing Information Sheet # 6: Right to Emotional Support Animals in �No Pet� Housing.
2. Huss, R. (2004). No Pets Allowed: Housing Issues and Companion Animals. Animal Law, 11, 69.
3. Ligatti, C.C. (2010). No Training Required: the Availability of Emotional Support Animals as a Component of Equal Access for the Psychiatrically Disabled Under the Fair Housing Act. Marshall Law Review, 35, 139.

Audubon's Dogs: Hunting in the American South Before the Civil War

John James Audubon, in his three-volume treatise, The Vivaparous Quadrupeds of North America (1846), only identifies two indigenous dogs of North America, the Hare-Indian Dog (Canis familiaris var. lagopus) and the Esquimaux Dog (Canis familiaris var. borealis), though he does describe a number of wolves and foxes. Nevertheless, in describing a wide range of animals that are hunted, he provides a wealth of detail regarding the hunting practices, indeed hunting cultures, of the pre-Civil War United States. For the slave states�he long resided in Kentucky and was himself a slave owner�Audubon provides considerable detail about how slaves were used in the hunts, what game they pursued on their own, and the dogs they owned.

Wildcat

The Common American Wild Cat, Lynx Rufus, killed livestock and game, and was hunted on the plantations of the South. (Here I will follow Audubon's spelling and capitalization preferences. Double click to see larger images.) In his description of such a hunt beginning early one morning, Audubon carefully explains the functions of the slaves�always a gentleman, he generally refers to them as servants.

�The hunters greet each other in the open-hearted manner characteristic of the Southern planter. Each pack of dogs is under the guidance of a coloured driver, whose business it is to control the hounds and encourage and aid them in the hunt. The drivers ride in most cases the fleetest horses on the ground, in order to be able, whilst on a deer hunt to stop the dogs. These men, who are so important to the success of the chase, are possessed of a good deal of intelligence and shrewdness, are usually much petted, and regarding themselves as belonging to the aristocracy of the plantation, are apt to look down upon their fellow servants as inferiors, and consider themselves privileged even to crack a joke with their masters.�

The hunt of the wildcat is not to change objective even if a deer is startled:

�The drivers are ordered to stop the dogs if a deer should be started, a circumstance which often occurs, and which has saved the life of many a Cat, whose fate five minutes before this unlucky occurrence was believed to be sealed. Orders are given to destroy the Cat fairly, by running him down with the hounds, or if this cannot be done, then by shooting him if he ascends a tree or approaches within gun shot of the stand which the hunter has selected as the most likely place for him to pass near. The day is most auspicious--there is not a breath of wind to rustle the falling leaves, nor a cloud to throw its shadows over the wide joyous landscape. The dew-drops are sparkling on the few remaining leaves of the persimmon tree, and the asters and dog-fennel hang drooping beneath their load of moisture. The dogs are gamboling in circles around, and ever and anon, in spite of all restraint, the joyous note breaks forth�the whole pack is impatient for the chase, and the young dogs are almost frantic with excitement.�

One could almost be reading of dogs before an English fox hunt:

�But we have not time for a farther description of the scene-whilst we are musing and gazing, the word is given, �Go!� and off start the hounds, each pack following its own driver to different parts of the old fields, or along the borders of the swamps and marshes. Much time, labour and patience are usually required, before the �Cat� can be found by the dogs: sometimes there is a sudden burst from one or the other of the packs, awakening expectation in the minds of the huntsmen, but the driver is not to be so easily deceived, as he has some dogs that never open at a rabbit, and the snap of the whip soon silences the riotous young babblers. Again there is a wild burst and an exulting shout, giving assurance that better game than a rabbit is on foot; and now is heard a distant shot, succeeded in a second of time by another, and for an instant all is still: the echoes come roaring up through the woods, and as they gradually subside, the crack of the whip is again heard stopping the dogs. The story is soon told; a deer had been started�the shot was too small�or the distance too great, or any other excuses, (which are always at hand among hunters of fertile imagination,) are made by the unsuccessful sportsman who fired, and the dogs are carried back to the �trail� of the Cat, that has been growing fresher and fresher for the last half hour. At length, �Trimbush,� (and a good dog is he,) that has been working on the cold trail for some time, begins to give tongue, in a way that brings the other dogs to his aid. The drivers now advance to each other, encouraging their dogs; the trail becomes a drag; onward it goes through a broad marsh at the head of a rice-field. �He will soon be started now!� �He is up!� What a burst! you might have heard it two miles off�it comes in mingled sounds, roaring like thunder, from the muddy marsh and from the deep swamp. The barred owl, frightened from the monotony of his quiet life among the cypress trees, commences hooting in mockery as it were, of the wide-mouthed hounds. Here they come, sweeping through the resounding swamp like an equinoctial storm�the crackling of a reed, the shaking of a bush, a glimpse of some object that glided past like a shadow, is succeeded by the whole pack, rattling away among the vines and fallen timbers, and leaving a trail in the mud as if a pack of wolves in pursuit of a deer had hurried by. The Cat has gone past. It is now evident that he will not climb a tree. It is almost invariably the case that where he can retreat to low swampy situations, or briar patches, he will not take a tree, but seeks to weary the dogs by making short windings among the almost impassable briar patches. He has now been twisting and turning half a dozen times in a thicket covering only three or four acres�let us go in and take our stand on the very trail where he last passed, and shoot him if we can. A shot is heard on the opposite edge of the thicket, and again all is still; but once more the pack is in full cry. Here he comes, almost brushing our legs as he dashes by and disappears in the bushes, before we can get sight of him and pull trigger. But we see that the dogs are every moment pressing him closer, that the marauder is showing evidences of fatigue and is nearly �done up.� He begins to make narrower circles, there are restless flashes in his eye, his back is now curved upwards, his hair is bristled nervously forward, his tongue hangs out�we raise our gun as he is approaching, and scarcely ten yards off�a loud report�the smoke has hardly blown aside, ere we see him lifeless, almost at our very feet�had we waited three minutes longer, the hounds would have saved us the powder and shot!�

Wildcats might be treed by accident:

�In hunting at night for racoons and opossums, in which sport the negroes on the plantations of Carolina take great delight, a Cat is occasionally �treed� by the dogs; and the negroes, who seldom carry a gun, climb up the tree and shake him off as they would do a racoon, and although he fights desperately, he is generally killed by the dogs.�

Cougar

An even more dangerous cat on the plantation was the Cougar, Felis Concolor, as indicated by the following story:

�Another respectable gentleman of the State of Mississippi gave us the following account. A friend of his, a cotton planter, one evening, while at tea, was startled by a tremendous outcry among his dogs, and ran out to quiet them, thinking some person, perhaps a neighbour, bad called to see him. The dogs could not be driven back, but rushed into the house; he seized his horsewhip, which hung inside the hall door, and whipped them all out, as he thought, except one, which ran under the table. He then took a candle and looking down, to his surprise and alarm discovered the supposed refractory dog to be a Cougar. He retreated instanter, the females and children of his family fled frightened half out of their senses. The Cougar sprang at him, he parried tbe blow with the candlestick, but the animal flew at him again, leaping forward perpendicularly, striking at his face with the fore-feet, and at his body with the hind-feet. These attacks he repelled by dealing the Cougar straight-forward blows on its belly with his fist, lightly turning aside and evading its claws, as he best could. The Cougar had nearly overpowered him, when luckily be backed toward the fire-place, and as the animal sprang again at him, dodged him, and the panther almost fell into the fire; at which he was so terrified that he endeavoured to escape, and darting out of the door was immediately attacked again by the dogs, and with their help and a club was killed.�

Black Bear

The American Black Bear, Ursus Americanus, was also hunted as a marauder. The division of labor in such a hunt on a plantation in Louisiana is described by Audubon in detail:

�Being one night sleeping in the house of a friend who was a Planter in the State of Louisiana, we were awakened by a servant bearing a light, who gave us a note, which he said his master had just received. We found it to be a communication from a neighbour, requesting our host and ourself to join him as soon as possible, and assist in killing Rome Bears at that moment engaged in destroying his corn. We were not long in dressing, and on entering the parlour, found our friend equipped. The overseer's horn was heard calling up the negroes. Some were already saddling our horses, whilst others were gathering all the cur-dogs of the plantation. All was bustle. Before half an hour had elapsed, four stout negro men, armed with axes and knives, and mounted on strong nags, were following us at a round gallop through the woods, as we made directly for the neighbour's plantation.

�The night was none of the most favourable, a drizzling rain rendering the atmosphere thick and rather sultry; but as we were well acquainted with the course, we soon reached the house, where the owner was waiting our arrival. There were now three of us armed with guns, half a dozen servants, and a good pack of dogs of all kinds. We jogged on towards the detached field in which the Bears were at work. The owner told us that for some days several of these animals had visited his corn, and that a negro who was sent every afternoon to see at what part of the enclosure they entered, had assured him there were at least five in the field that night. A plan of attack was formed: the bars at the usual entrance of the field were to be put down without noise; the men and dogs were to divide, and afterwards proceed so as to surround the Bears, when, at the sounding of our horns, every one was to charge towards the centre of the field, and shout as loudly as possible, which it was judged would so intimidate the animals as to induce them to seek refuge upon the dead trees with which the field was still partially covered.

�The plan succeeded: the horns sounded, the horses galloped forward, the men shouted, the dogs barked and howled. The shrieks of the negroes were enough to frighten a legion of bears, and by the time we reached the middle of the field we found that several had mounted the trees, and having lighted fires, we now saw them crouched at the junction of the larger branches with the trunks. Two were immediately shot down. They were cubs of no great size, and being already half dead, were quickly dispatched by the dogs.

�We were anxious to procure as much sport as possible, and having observed one of the Bears, which from its size we conjectured to be the mother of the two cubs just killed, we ordered the negroes to cut down the tree on which it was perched, when it was intended the dogs should have a tug with it, while we should support them, and assist in preventing the Bear from escaping, by wounding it in one of the hind-legs. The surrounding woods now echoed to the blows of the axemen. The tree was large and tough, having been girded more than two years, and the operation of felling it seemed extremely tedious. However, at length it began to vibrate at each stroke; a few inches alone now supported it, and in a short time it came crashing to the ground.

�The dogs rushed to the charge, and harassed the Bear on all sides, whilst we surrounded the poor animal. As its life depended upon its courage and strength, it exercised both in the most energetic manner. Now and then it seized a dog and killed him by a single stroke. At another time, a well administered blow of one of its forelegs sent an assailant off, yelping so piteously that he might be looked upon as hors du combat. A cur had daringly ventured to seize the Bear by the snout, and was seen hanging to it, covered with blood, whilst several others scrambled over its back. Now and then the infuriated animal was seen to cast a revengeful glance at some of the party, and we had already determined to dispatch it, when, to our astonishment, it suddenly shook off all the dogs, and before we could fire, charged upon one of the negroes, who was mounted on a pied horse. The Bear seized the steed with teeth and claws, and clung to its breast. The terrified horse snorted and plunged. The rider, an athletic young man and a capital horseman, kept his seat, although only saddled on a sheep-skin tightly girthed, and requested his master not to fire at the Bear. Notwithstanding his coolness and courage, our anxiety for his safety was raised to the highest pitch, especially when in a moment we saw rider and horse come to the ground together; but we were instantly relieved on witnessing the masterly manner in which Scipio dispatched his adversary, by laying open his skull with a single well directed blow of his axe, when a deep growl announced the death of the Bear.�

Fox

Dogs were sometimes imported, most probably from England, as indicated in the following passage regarding the Red Fox, Vulpes Velox:

�In order to ascertain whether the speed of the Red Fox was as great in the south as in the colder regions of the north, several gentlemen near Augusta, in the winter of 1844, resolved to test the question by a regular Fox chase. They congregated to the number of thirty, with one hundred hounds, many of them imported dogs, and all in fine running order. They started a Fox at two o'clock on a moonlight morning. He took to a pretty open country on the west bank of the Savannah river. A number of gentlemen were mounted on fleet horses. Mr. Beile rode in succession three horses during the chase, two of which were good hunters. The pursuit of the flying beast was kept up till three o'clock in the afternoon, having continued thirteen hours, when the horses and the whole pack of hounds were broken down, and the hunt was abandoned.�

Raccoon

Some animals were hunted primarily by the slaves, including the Raccoon, Procyon Lotor. Audubon, describing a visit to a plantation, relates that the animal fed on birds and rabbits, but in winter robbed the poultry houses. �The Negroes on his plantation he said kept good dogs, and relied on them for hunting the Raccoon.� Audubon records his host�s description of a hunt and what becomes of the meat:

�Whenever a Raccoon was about to attack the poultry house, the dogs scenting him give a shrill cry, which is the signal for his owner to commence the hunt. He comes out armed with an axe, with a companion or two, resolved on a Raccoon hunt. The dog soon gives chase with such rapidity, that the Raccoon, hard pressed, takes to a tree. The dog, close at his heels, changes his whining cry while running to a shrill short sharp bark. If the tree is small or has limbs near the ground so that it can be easily ascended, the eager hunters climb up after the 'coon.� He perceives his danger, endeavours to avoid his pursuers by ascending to the farthest topmost branch, or the extremity of a limb; hut all his efforts are in vain, his relentless pursuers shake the limb until he is compelled to let go his bold, and he comes toppling heavily to the ground, and is instantly seized by the dogs. It frequently happens however that the trees are tall and destitute of lower branches so that they cannot be climbed without the risk of life or limb. The negroes survey for a few moments in the bright moonlight the tall and formidable tree that shelters the coon, grumble a little at the beast for not having saved them trouble by mounting an easier tree, and then the ringing of their axes resounds through the still woods, awakening echoes of the solitude previously disturbed only by the hooting of the owl, or the impatient barking of the dogs. In half an hour the tree is brought to the ground and with it the Raccoon, stunned by the fall: his foes give him no time to define his position, and after a short and bloody contest with the dogs, he is despatched, and the sable hunters remunerated, �for his skin they will sell to the hatters in the nearest town, and his flesh they will bang up in a tree to freeze and furnish them with many a savoury meal.�

Opossum

The Opossum, Didelphis Virginiana, was hunted on plantations throughout the South:

��Come, men,� says one, �be lively, let us finish our tasks by four o'clock, and after sundown we will have a 'possum hunt.� �Done, says another, �and if an old coon comes in the way of my smart dog, Pincher, I be bound for it, he will shake de life out of him.� The labourers work with increased alacrity, their faces are brightened with anticipated enjoyment, and ever and anon the old familiar song of 'Possum up the gum tree� is hummed, whilst the black driver can scarcely restrain the whole gang from breaking out into a loud chorus.�

As to the dogs for such a hunt, they are �two or three curs, half hound or terriers, each having his appropriate name, and each regarded by his owner as the best dog on the plantation.� The slaves banter, one calling another�s dog a �good-for-nutten fox-dog.� The tools are axes and torches:

�One of these humble rustic sportsmen shoulders an axe and another a torch, and the whole arrangement for the hunt is completed. The glaring torch-light is soon seen dispersing the shadows of the forest, and like a jack o'lantern, gleaming along the skirts of the distant meadows and copses. Here are no old trails on which the cold-nosed hound tries his nose for half an hour to catch the scent. The tongues of the curs are by no means silent--ever and anon there is a sudden start and an uproarious outbreak: �A rabbit in a hollow, wait, boys, till I twist him out with a hickory.� The rabbit is secured and tied with a string around the neck: another start, and the pack runs off for a quarter of a mile, at a rapid rate, then double around the cotton fields and among the ponds in the pine lands��Call off your worthless dog, Jim, my Pincher has too much sense to bother after a fox.� A loud scream and a whistle brings the pack to a halt, and presently they come panting to the call of the black huntsman. After some scolding and threatening, and resting a quarter of an hour to recover their breath and scent, they are once more hied forwards. Soon a trusty old dog, by an occasional shrill yelp, gives evidence that he has struck some trail in the swamp. The pack gradually make out the scent on the edges of the pond, and marshes of the rice fields, grown up with willows and myrtle bushes (Myrica cerifera). At length the mingled notes of shrill and discordant tongues give evidence that the game is up. The race, though rapid, is a long one, through the deep swamp, crossing the muddy branch into the pine lands, where the dogs come to a halt, unite in conclave, and set up an incessant barking at the foot of a pine. �A coon, a coon! din't I tell you,� says Monday, 'that if Pincher come across a coon, he would do he work!� An additional piece of split lightwood is added to the torch, and the coon is seen doubled up in the form of a hornet's nest in the very top of the long-leaved pine, (P. palwtria). The tree is without a branch for forty feet or upwards, and it is at once decided that it must be cut down: the axe is soon at work, and the tree felled. The glorious battle that ensues, the prowess of the dogs, and the capture of the coon, follow as a matter of course.�

Deer

Audubon notes that deer hunting varies from place to place:

�In mountainous, rocky regions, where horses cannot be used with advantage, he [the hunter] goes on foot, armed with a rifle, carries no dog, and seeks for the Deer in such situations as his sagacity and experience suggest. He either espies him in his bed, or silently steals upon him behind the covert of the stem of a large tree whilst he is feeding, and leisurely takes a steady and fatal aim. On the contrary, in situations adapted to riding, where the woods are thickly clothed with underbrush, where here and there wide openings exist between briar-patches, and clumps of myrtle bushes, as in the Southern States, the Deer are almost universally chased with hounds, and instead of the rifle, double-barrelled deer guns, of different sizes, carrying from twelve to twenty buck-shot, are alone made use of by the hunters.�

As in England, dogs could be specialized for different phases of a deer hunt, with beagles used to track and greyhounds to bring the animal down.

Hunting deer could present considerable risk to a slave, or a dog, as shown by the following story concerning a night hunt of Virginian Deer, Cervus virginianus.

�Fire hunting is another destructive mode of obtaining Deer. In this case two persons are essential to success. A torch of resinous wood is carried by one of the party, the other keeps immediately in front with his gun. The astonished Deer instead of darting off seems dazzled by the light, and stands gazing at this newly kindled flame in the forest. The hunter sees his eyes shining like two tapers before him ; he fires and is usually successful; sometimes there are several Deer in the gang, who start off for a few rods at the report of the gun, and again turn their eyes to the light. In this manner two or three are frequently killed within fifty yards of each other. This kind of bunting by firelight is often attended with danger to the cattle that may be feeding in the vicinity, and is prohibited by a law of Carolina, which is however frequently violated. The eyes of a cow are easily mistaken for those of a deer. We conversed with a gentleman who informed us that he had never indulged in more than one fire-hunt, and was then taught a lesson which cured him of his passion for this kind of amusement. He believed that he saw the eyes of a Deer and fired, the animal bounded off, as he was convinced, mortally wounded. In the immediate vicinity he detected another pair of eyes and fired again. On returning the next morning to look for his game, he found that he bad slaughtered two favourite colts. Another related an anecdote of a shot fired at what was supposed to be the shining eyes of a Deer, and ascertained to his horror that it was a dog standing between the legs of a negro, who had endeavoured to keep him quiet. The dog was killed and the negro slightly wounded.�

Black Wolf

The Black Wolf, Canis Lupus var. Ater, was still prevalent, and sometimes dangerous, as Audubon relates regarding an incident in Kentucky:

�Although Wolves are bold and savage, few instances occur in our temperate regions of their making an attack on man; and we have only had one such case come under our own notice. Two young negroes, who resided near the banks of the Ohio, in the lower part of the State of Kentucky, about thirty years ago, had sweethearts living on another plantation, four miles distant. After the labours of the day were over, they frequently visited the fair ladies of their choice, the nearest way to whose dwelling lay directly across a large cane brake. As to the lover every moment is precious, they usually took this route to save time. Winter had set in cold, dark and gloomy, and after sunset scarcely a glimpse of light or glow of warmth were to be found in that dreary swamp, except in the eyes and bosoms of the ardent youths who traversed these gloomy solitudes. One night, they set forth over a thin crust of snow. Prudent, to a certain degree, the lovers carried their axes on their shoulders, and walked as briskly as the narrow path would allow. Some transient glimpses of light now and then met their eyes in the more open spaces between the trees, or when the heavy drifting clouds parting at times allowed a star to peep forth on the desolate scene. Fearfully, a long and frightful howl burst upon them, and they were instantly aware that it proceeded from a troop of hungry and perhaps desperate wolves. They paused for a moment and a dismal silence succeeded. All was dark, save a few feet of the snow-covered ground immediately in front of them. They resumed their pace hastily, with their axes in their hands prepared for an attack. Suddenly, the foremost man was assailed by several wolves which seized on him, and inflicted terrible wounds with their fangs on his legs and arms, and as they were followed by many others as ravenous as themselves, several sprung at the breast of his companion, and dragged him to the ground. Both struggled manfully against their foes, but in a short time one of the negroes had ceased to move; and the other, reduced in strength and perhaps despairing of aiding his unfortunate comrade or even saving his own life, threw down his axe, sprang on to the branch of a tree, and speedily gained a place of safety amid the boughs. Here he passed a miserable night, and the next morning the bones of his friend lay scattered around on the snow, which was stained with his blood. Three dead wolves lay near, but the rest of the pack had disappeared; and Scipio sliding to the ground, recovered the axes and returned home to relate the terrible catastrophe.�

Note that this is the second reference to the slave Scipio.

Conclusion

As was true of the forest laws of medieval England, social hierarchies were reflected in the kinds of dogs separate classes owned. In England, however, the greyhound was restricted to those who had a high income, whereas in the American South the separation of classes was primarily due to the economics of masters and slaves on plantations. Plantation owners could import dogs and maintain bloodlines. Although greyhounds are mentioned by Audubon, by far the most common breed he describes in plantation hunts is the foxhound, though he does not think the dog ideal in all circumstances, mentioning cases where foxhounds could not catch the game being hunted. Slaves and the poor picked up the mixed breeds and rejects.

The Vivaparous Quadrupeds of North America was Audubon�s last work, and though not the reason for his continuing fame, is a valuable source on both mammals and their significance to human society before the Civil War. When Audubon wrote, much of the United States remained wild, and the West was still poorly known. Game was plentiful, and Indian nations west of the Mississippi lived the ways of their ancestors, though that was beginning to change. There is a na�vet� about Audubon�s description of hunts, a recollection of the time when gentlemen hunted because it was part of their destiny, something that came with one�s station in life. Some observations about slaves might seem callous now, but Audubon was an advanced thinker as a naturalist, and his powers of observation were not lost in his descriptions of hunting.

Thanks to Richard Hawkins for ideas and suggestions.

Additional Note.  The Cache River National Wildlife Refuge in Arkansas now requires "dogs for hunting raccoon/opossum at night."  50 CFR 32.23, 80 Fed. Reg. 51888 (August 26, 2015).