On September 29, 2009, Cecilia Nicholas was at her home in Binghamton, New York, when the flame of her gas fireplace went out. She saw a New York State Electric and Gas vehicle parked in front of her house and a NYSEG employee in her driveway and suspected he had shut off her gas. She opened the door and asked him to turn the gas back on, but he said that was not part of his job. He only turned gas off. She asked him to call the police, which he did.
Nicholas stood beside the NYSEG vehicle waiting for the police to arrive. After about 20 minutes she became cold, and since the engine of the vehicle was running, she climbed onto its hood to keep warm. When the police arrived, they determined that Nicholas was refusing to let the NYSEG vehicle leave. Officer Charles Harder of the Binghamton Police Department began to remove her from the hood of the vehicle. She asked him to stop because he was hurting her and she had multiple sclerosis.
Accounts of how Nicholas got to the front steps of her house differ, but while she was sitting on the stoop Officer Harder told her she was out of control and would be taken to Binghamton General Hospital�s Comprehensive Psychiatric Emergency Program Unit for evaluation. Nicholas asked if she could first tend to her dog, use the bathroom, take medication, and lock up her house, and the officers agreed.
After Nicholas performed her tasks, she asked the officers (a second, Officer Mooney, had now arrived) to let her dog accompany her to the hospital because he was a service dog. The officers refused and after some more interactions that are described differently by Nicholas and the police, Nicholas was handcuffed. Officer Mooney called an ambulance because Nicholas complained of chest pains. Her handcuffs were removed after about four minutes.
When the ambulance arrived, Officer Harder told the emergency personnel to take her to �behavioral� at General Hospital. At the hospital, personal in the Psychiatric Emergency Unit interviewed Nicholas, determined she was not in need of psychiatric services, and released her.
Lawsuit
Nicholas filed a lawsuit in December 2010, asserting 17 causes of action, including false arrest, illegal search without a warrant, excessive force, violation of free speech, intentional infliction of emotional distress, battery, abuse of process, defamation, and other claims, and more were added by an amended complaint.
The claims that will be discussed here concern Nicholas�s service dog. Nicholas alleged that she was discriminated against under the Americans with Disabilities Act by being deprived of her service dog. The City argued that the ADA claim should be dismissed because Nicholas had failed to demonstrate that her dog met the ADA definition of a service dog. Nicholas submitted a brochure of the New York State Attorney General�s Office, Service Animals; Frequently Asked Questions, which she noted does not require that a dog be specially trained by a recognized or certified training program to be a service dog under federal and state disability laws.
The federal district court stated that �an arrest or seizure of an individual, including post arrest transportation and investigation, is a �service, activity, or benefit� of a police department and is thus covered under the ADA.� To established liability in the context of an arrest or seizure, the court said that Nicholas had to establish a wrongful arrest, and that �the officers failed to provide a reasonable accommodation during the course of the investigation or arrest, causing her to suffer greater injury or indignity than other arrestees.� For this proposition the court cited Gorman v. Bartch, 152 F.3d 907 (8thCir. 1998) where a paraplegic arrestee was able to establish an ADA violation after suffering injuries while being transported to jail in a van not equipped for wheelchair transport.
The court determined that Nicholas was a qualified individual with a disability and that the City was subject to the requirements of the ADA. �Here, Plaintiff suffers from multiple sclerosis, an autoimmune disease that affects the brain and spinal cord. She requires help performing daily tasks such as sitting and reaching.� The court also rejected the City�s argument that Nicholas�s dog was not a service dog:
�Under the ADA, a service animal is defined as �any animal individually trained to do work or perform tasks for the benefit of an individual with a disability.� 28 C.F.R � 36.104. The work or tasks performed by a service animal must be directly related to the individual's disability�. Examples of tasks include retrieving items such as medicine, or the telephone, and providing physical support and assistance with balance and stability�. Plaintiff's dog meets this definition because she personally trained her dog to help her pick up things off the floor, assist her when she gets out of chairs, and provide support when she leans on him when she feels unbalanced.�
Thus, the court said that �Plaintiff�s dog qualifies as a service dog under the ADA.� The dog appears to have been a mobility impairment animal. The problem with Nicholas�s ADA claim concerned her assertion that she was denied a reasonable accommodation by not being allowed to be accompanied by her service animal to the hospital. The court said however, that being deprived of the accompaniment of her service dog did not cause Nicholas �to suffer any harmful consequences.�
Nicholas also alleged that her rights under New York�s Civil Rights Law and Executive Law were violated by the officers in their refusal to let her keep her service dog in her custody. The defendant officers and City argued that Nicholas did not have a service dog within the meaning of either state statute. The court summarized the Civil Rights Law and cases concerning several medical environments where it has been held not to apply:
�New York Civil Rights Law Art. 4�B � 47�B states: �Persons with a disability accompanied by ... service dogs shall be guaranteed the right to have such dogs in their immediate custody while exercising any of the rights and privileges set forth in this article.� N.Y. Civ. Rights Law Art. 4b � 47(b). The rights and privileges referred to are the right to obtain and maintain employment, and the right to equal use and enjoyment of any public facility�. The New York courts have excluded from the definition of public facility those areas where the general public are customarily not invited or permitted. Cf. Albert v. Solimon, 252 A.D.2d 139,146 684 N.Y.S.2d 375, 380 (1998) (Examination room of a doctors office was not a 'public facility,' and the physician did not discriminate when he ordered that the service dog leave the examination room); Perino v. St. Vincent's Medical Center of Staten Island, 132 Misc.2d 20, 23 502 N.Y.S.2d 921, 923 (N.Y.Sup.Ct.1986) (Delivery room and labor room of a hospital were not �public facilities,� and the presence of the father's service dog would present an unacceptable danger to expecting mother, the physicians, and nurses).�
The court said that an emergency vehicle was not a public place, just as a hospital room was not. The court noted that it was not clear at first that Nicholas would be transported in an ambulance. After she was handcuffed, it appeared at first she might be transported in a police car. �As such, Plaintiff did not have the right to have her service dog in her immediate custody and her Civil Rights Law claim fails as a matter of law.�
With respect to the Executive Law, the court dismissed this claim in a single paragraph:
�With respect to the New York Human Rights Law, N.Y. Exec. Law � 296(14), Plaintiff's claim also fails. This law states: �it shall be an unlawful discriminatory practice for any person engaged in an activity covered by this section to discriminate against ... a person with a disability on the basis of his or her use of a service dog.� N.Y. Exec. Law. � 296(14) (2010). This statute defines service dog more narrowly than it is defined under the federal ADA statute. It defines service dog as �any dog that is trained to work or perform specific tasks for the benefit of a person with a disability by a recognized service dog training center or professional service dog trainer ...�. Id. at � 292(33). Because Plaintiff has admitted her dog has not been professionally trained, this claim is dismissed.�
My Analysis
The court determined that Nicholas did not have the right to have a service dog that satisfies ADA requirements in an ambulance, correctly analogizing the interior of an ambulance to an emergency room or other medical location where having a dog, even a service dog, could pose health risks. It is known, for instance, that MRSA can be found on the paws of therapy dogs moving through hospitals. A hospital or ambulance operator might make an exception even where sterilized equipment is in use, but should not be required to do so under the ADA. (See Service and Therapy Dogs in American Society, Chapter 13: Animals in Healthcare Facilities.)
I bring a therapy dog to a hospital. I am not generally permitted to bring the dog into the emergency room, but if requested by a family for a child, under hospital policy I can do so if the emergency room personnel make certain preparations in advance. It has happened only once in my four years of going to the hospital with Chloe. The same sort of accommodation might be made for a service dog, though that is also uncommon.
I am more concerned with the court�s dictum that a person would not be entitled to bring a service dog�at least in New York State�into a police car. Here there are no substantial medical considerations. I suspect that the New York definition of a service dog for this purpose could be challenged under the ADA, and that a self-trained service animal should qualify for receipt of state and local governmental services. (See, e.g., 28 CFR 35.136, 75 Fed. Reg. 56164 (September 15, 2010) applying ADA to state and local governmental services and defining service animal as �individually trained� without requiring any specific type of trainer or excluding the individual using the dog from being its trainer.) Of course, an animal that was out of control or not housebroken could be excluded, as the federal rules allow. Although the police might argue that allowing the dog in the back of a police car would be a fundamental alteration�e.g. because prisoners with allergies are sometimes transported in police cars�I do not think that this would make a reasonable accommodation impractical.
It must be acknowledged, however, that at the time of the incident giving rise to these claims, final regulations had not been issued by the Department of Justice for state and local governmental situations. Thus, if a case arose now where a self-trained service dog was denied access to a police car with its master, I believe a strong claim for a reasonable accommodation to bring the dog in the car could be mounted.
It must be acknowledged, however, that at the time of the incident giving rise to these claims, final regulations had not been issued by the Department of Justice for state and local governmental situations. Thus, if a case arose now where a self-trained service dog was denied access to a police car with its master, I believe a strong claim for a reasonable accommodation to bring the dog in the car could be mounted.
Nicholas v. City of Binghamton, New York, 2012 WL 3261409 (N.D.N.Y. 2012).
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