Therapy Dog at Her Side, Child Testifies Against Sexual Predator

James Edward Spence was convicted by a jury of sexual offenses against a ten-year-old girl, including sexual penetration, sodomy, committing a lewd act, and oral copulation.  On appeal, he assigned error because the victim had been accompanied on the witness stand by a �victim advocate� from the district attorney�s office as well as a therapy dog. A picture of the dog involved in the case, Dory, is posted on the website of Courthouse Dogs. The convictions were affirmed by a California appellate court. 

The decision of the California appellate court is analyzed in an article posted on the website of the Animal Legal and Historical Center of Michigan State University's College of Law. (See Part II of the article concerning California v. Spence.)  I will be adding to the article as further developments regarding these specialized therapy dogs, now most often referred to as facility dogs, occur.    

Proposed Highway Safety Rules for Hybrids Consider Needs of Guide Dog Users

Some incidents will explain why the Department of Transportation considers it important that hybrid and electric vehicles emit some level of sound that pedestrians, particularly those with vision impairments, can hear:

�I was on my way to work and got off the bus at the northwest corner of Jackson and Halsted. I made a left turn when I got off the bus, with Halsted on my left and Jackson in front me. When I went to cross Jackson my dog took me to the right as if there was an obstruction, but I didn't hear anything so I didn't know why he was going that way. I found out later that an SUV had pulled into the crosswalk to make a right on red. My dog had to go behind it because it jutted out into traffic. When we got across the street there was so much snow on the sidewalk that my dog had to take me around the right side of the car. It was only then that I realized it was a car that was blocking the intersection. The driver was about to turn right, and another pedestrian noticed that he hadn't seen me because he was looking the other way. The pedestrian shouted at him to hold still until I got out of the way. If that pedestrian hadn't noticed what was happening I would have been hit. I would have crossed the other street if I had heard the car there, but it was completely silent.�

Another visually impaired person describes being saved only because his dog pulled him back before stepping in front of a hybrid. One guide dog pushed its owner into a snowbank to save him.  In another incident, a guide dog user was hit and his leg broken when neither he nor his dog heard a car.  Yet another worried whether his dog should have heard a car since he had not:

�I had someone from Seeing Eye come down to reenact the incident and evaluate my dog. I wanted to make sure she was working well, that she really was looking. She did stop me just in time, but the driver had to jam on his brakes and when I reached out I could touch the car. The driver had swerved to avoid hitting me. I think not only blind people are in danger from these quiet cars, but so far blind people are the only ones trying to do anything about it. I think when there are more silent cars like all-electrics on the road I will totally lose my confidence.�

These comments were made by participants in a survey conducted by the National Federation for the Blind, specifically by the head of that organization�s Committee on Automobiles and Pedestrian Safety, Deborah Kent Stein. 

Proposed Highway Safety Rules

In proposing rules requiring that cars with quiet technology�electric cars and hybrids�emit at least some sound even when their engines are shut off, the National Highway Traffic Safety Administration (NHTSA) within the Department of Transportation indicates that a significant reason for such requirements concerns visually-impaired persons.  The risk from silent cars applies both to people who use guide dogs but also people who use the �structured discovery method of independent travel,� which involves using information provided by a white cane, traffic sounds, and other cues in order to travel safely. 

It should also be noted that being able to hear vehicles is sometimes important for guide and service dogs.  There are also individuals who suffer from both sight and hearing loss who depend on the dogs to guide them while recognizing dangerous sounds.   Also, some hearing or signal dogs, which work with individuals who have hearing impairments, are trained to recognize vehicle sounds so that they can alert their masters to oncoming cars while the two are walking.  These dogs will also benefit from the additional sound requirements. 

National Highway Traffic Safety Administration Analysis of the Needs of the Visually Impaired

The NHTSA notes that most guide dog schools require that individuals with whom dogs will be paired have some skill in using a white cane.  The guide dog does not generally lead the person, but primarily guides him or her around obstacles.  (Certain dogs, such as dogs in Israel and Australia that work with Alzheimer�s patients, do in fact lead their owners.)  For those who are visually impaired, traveling safely and independently involves substantial use of the sense of hearing. In its release proposing certain sound levels for hybrid and electric cars, the NHTSA elaborates:

�When traveling with a white cane or guide dog, the primary sound cue used by blind pedestrians is the sound of vehicle traffic, which serves two purposes: navigation and collision avoidance. Navigation involves not only ascertaining the proper time to enter a crosswalk and maintain a straight course through an intersection while crossing, but also the recognition of roadways and their traffic patterns and their relationship to sidewalks and other travel ways a blind or visually-impaired person might use.�

Collision avoidance is of tremendous concern to a blind person: 

�Sound emitted by individual vehicles, as opposed to the general sound of moving traffic, is critical. The sound of individual vehicles alerts blind travelers to the vehicle�s location, speed, and direction of travel. For example, a blind or visually-impaired person moving through a parking lot can hear and avoid vehicles entering or exiting the lot or looking for parking spaces; a blind person walking through a neighborhood can hear when a neighbor is backing out of a driveway. The vehicle sound also indicates to a blind or visually-impaired pedestrian whether a vehicle is making a turn, and if so, in which direction. The sound of individual vehicles also allows the blind traveler to detect and react to unusual or unexpected vehicle movement.�

The sound of a vehicle idling tells a visually-impaired person that the vehicle is not simply parked, and that it may move. At a driveway, the person will wait for the vehicle to pull out.  Even when they are not at intersections, visually-impaired persons listen to the sound of traffic constantly.  The sound of traffic passing helps them follow the roadway, inform them of roadway changes like curves, forks, or merges. 

�The sound of traffic is particularly important in negotiating intersections. By listening to the traffic, a blind or visually-impaired traveler can determine how the intersection is controlled (traffic signal, stop sign, etc.); how many lanes of traffic are involved; and any unusual characteristics of the intersection (e.g., three-way intersections or roundabouts). These determinations can be made by listening to the sounds of vehicle engines�often through one or two entire signal cycles�to determine driver behavior, which is usually a reliable indicator of the characteristics of the intersection. This includes the sound of stationary vehicles�particularly in multi-lane or oddly shaped intersections�because it is important to identify which lanes of traffic are active, when, and for how long; and to then follow the line of traffic that most nearly parallels the direction in which the traveler wishes to proceed. At the same time that the blind traveler is listening to the overall traffic pattern, he or she also listens for cues from individual vehicles, particularly when determining the precise moment to enter the crosswalk. At signaled intersections, an idling vehicle in the street parallel to the path of the traveler that accelerates and moves through the intersection is an indication that a traffic signal has just changed and that it is safe to proceed into the cross street, with maximum time to complete the crossing. In general, by crossing when the traffic flow is parallel to him or her, a blind individual can safely cross most intersections without difficulty. The individual will use the sound of the parallel traffic while crossing to maintain a roughly straight line through the intersection.�

Complex Intersection (NHTSA diagram)

Listening for cues requires taking in a great deal of information when the intersection is as complex as the one depicted in the diagram here.  A visually impaired-pedestrian will have to determine when vehicles are going straight, when left turns are occurring, and when stepping off the intermediate islands, will have to be aware that traffic on the fringes of the intersection may not be governed by lights, but only by stop or yield signs. 

As to hybrid vehicles (HVs) and electric vehicles (EVs), the NHTSA states:

�To the extent that there are more and more HVs and EVs on the road that are hard to detect, people who are blind or visually impaired will lose a key means�the sound of traffic�by which they determine when it is safe to cross streets, but also by which they orient themselves and navigate safely throughout their daily lives, avoiding dangers other than automobiles.�

Minimum Sound Requirements for Hybrid and Electric Vehicles

The proposed sound standards apply to electric vehicles and hybrids that are capable of propulsion in at least one forward gear, as well as in reverse, without the vehicle�s internal combustion engine (ICE) operating.  The Pedestrian Safety Enhancement Act (PSEA) of 2010 requires that hybrid and electric vehicles emit sound that pedestrians can hear in a range of ambient environments and contain acoustic signal content that pedestrians will recognize as being emitted from a vehicle. 

The proposed rules implementing the PSEA specify that a vehicle must, within half a second of activation of its starting system, emit a specific sound pressure level in each of eight octave bands.  Each octave band is identified by its center frequency. Sound frequency is measured in unit called Hertzes, universally abbreviated as �Hz.�  Human ears detect sound waves with frequencies ranging from 20 to 20,000, though vehicles need not emit sounds across this entire range.  The band center frequencies where vehicles must make sufficient sound to satisfy DOT�s proposal range from 315 to 5,000.  The decibel levels (technically, minimum sound pressure level (SPL) measured in decibels) required in the specified frequency ranges are from 31 to 60, depending on whether the vehicle is stationary, backing, or moving forward at 10 or 20 kilometers/hour.  This is expressed in a series in tables that will be used by engineers of vehicle manufacturers to assure that enough sound is being made either by the engine or by a separate sound system.  The tables in the proposal specify the following sound requirements:

	Minimum Sound Pressure Level (SPL), A-weighted decibels (dB)
1/3 octave band center frequency, HZ	Engine running, vehicle not moving	Vehicle backing up	Vehicle passing at 10 km/hour	Vehicle passing at 20 km/hour	Vehicle passing at 30 km/hour
315	42	45	48	54	59
400	43	46	49	55	59
500	43	46	49	56	60
2000	42	45	48	54	58
2500	39	42	45	51	56
3150	37	40	43	49	53
4000	34	36	39	46	50
5000	31	34	37	43	48

Notice that the greater the movement, the greater the sound requirement.  This is because of the increased risk and the higher level of ambient noise in moving traffic.  Currently, a 2010 Toyota Prius makes less than background noise when idling and stationary, an average of 44.2 dB when backing up, 53 dB when slowing from 20 to 10 mph, and 44.7 dB when passing at 6 mph (approximately 10 km/h). 

Conclusion

It is essential to consider the needs of individuals with disabilities when matters of safety arise and the Department of Transportation and the National Highway Traffic Safety Administration are to be commended for looking at the needs of those with visual impairments.  Because sound is the aspect of vehicle movement that presents dangers to pedestrian traffic, it is peculiar that this release made no mention of the hearing impaired.  The only mention of hearing loss in the release concerns that reduction of hearing that results because of ambient noise. It is noted that this kind of hearing loss tends to increase with age. 

The comment period on these proposed rules remains open until March 15, 2013.  The only automobile manufacturer to comment so far is Mercedes-Benz USA, which notes that one problem with the proposal is that drivers �stuck for extended periods of time in traffic congestion will be subject to constant sound emissions from their own vehicles, which they will be unable to turn off.�  It appears likely that some changes to the rules will be made before they are finalized.

Department of Transportation: National Highway Traffic Safety Administration, Federal Motor Vehicle Safety Standards; Minimum Sound Requirements for Hybrid and Electric Vehicles, 78 Fed. Reg. 2798 (January 14, 2013)

This blog will be periodically updated to discuss significant comments from other manufacturers and guide or service dog organizations. Thanks to Dennis Civiello, Clare McLaughlin, and Ronald Keats for comments and corrections.  

Additional Note.  The January 2013 issue of Car and Driver (p. 65) contains a description of a Department of Transportation study concerning a wireless car-to-car connectivity to avoid collisions. The piece indicates that this Wi-Fi technology could be mandatory in American cars by 2020.  Car and Driver states:

"Taking the idea further, GM wants to help drivers avoid mowing down pedestrians. The underlying technology, called Wi-Fi Direct, allows a smartphone in a car to communicate with a phone carried by a pedestrian without routing the dialogue through cell phone towers.  The direct connection cuts the time requited to identify a risk from eight seconds to one."

The NHTSA should consider the degree this type of technology might obviate the need for additional sounds in vehicles.  General Motors has not commented on the proposed regulations as of this writing (January 28, 2012).

Dog Fighting �Legend� Deserves Maximum Sentence, Federal Appeals Court Holds

How do dog fighters see themselves?  Not as gambling and meth addicts with a passion for the sight of dog blood, not as dog trainers whose dogs are chained in rows and exercised on treadmills before which are suspended struggling cats a dog is allowed to kill and eat after a good training session, not as inebriated men who stand around a pit lined with plywood planks while two dogs gradually remove the flesh from each other for two hours, not as dog breeders who put down those dogs that have not fought well by hanging them from hooks and attaching jumper cables to their heads and stomachs until they stop squirming from the shocks, not as canine undertakers who fill pits on farms and abandoned cars in vacant lots with dog carcasses which are then covered or burned to destroy the evidence of their crimes.  This is not how they see themselves. 

Chained Fighting Dog (courtesy Peta)

Rather, they are defenders of a tradition that has existed for centuries and that has been part of American culture from the very beginning, protectors of a type of dog that will fight to the death, a dog that will valiantly defend its master after the liberals have taken all his guns away.  They call themselves �dogmen� and honor the bloodlines of their champions, exchange bronze plaques with crude images of dogs (there were once silver dogs on pedestals but law enforcement has reduced profit margins and, in any case, require that too many outsiders know the reason for the trophy), tell stories of dogs that fought a hundred times, two hundred times (though many of those fights were against new dogs that did not have the will to fight and cowered into submission before being electrocuted as an unnecessary expense, and worse, as evidence that may increase a fine or prison time).  Most of all they are patriots, often proud to be veterans, abandoned by their country for their participation in unpopular wars, true Americans who must live behind barbed-wire fences and gates, down driveways with more NO TRESPASSING and ENTER AT YOUR OWN RISK signs than anyone can count, remnants of another time, believers in the righteousness of their cause for whom you are an enemy, always have been and always will be. 

Just find their blogs and websites, which have replaced the handbills once posted in gun shops and bars when dog fighting was only nominally illegal, law enforcement an occasional nuisance when someone on a board decided the county�s reputation was affecting real estate prices and the possibility of getting a chain store. There are no announcements of upcoming events on these sites�you have to be trusted and know whom to call to get that information�but past fights may be described in detail.  Not that they will admit that the accounts are real, because there is always a sentence in the running head saying something like, ALL ACCOUNTS ARE FICTIONAL AND SHOULD BE VIEWED AS SUCH.

How Do Dog Fighters Describe a Fight?

The following description of a fight can be found on a blog devoted to APBT, the American Pit Bull Terrier:

�[A dog named Benny Bob] went out to California and was matched into Ralph Greenwood�s JIMMIE BOOTS. That was the most vicious and best fights I�ve ever seen. It was like when you were watching it you knew it couldn�t go on another five minutes. It was really like two full grown men with icepicks and you knew it just couldn�t go on any further, but that five minutes would pass and then you knew for sure it was impossible to go on another five minutes. The whole fight was like that�you knew it had to be over because no two dogs could take that kind of punishment�. After the fight I would have bet you $100 that it didn�t last longer than twenty minutes, that�s how exciting it was, but it lasted nearly two hours with JIMMY BOOTS being the winner.�� (emphasis added)

The blog refers to this as a good story, two dogs destroying each other for two hours.  The quotation is attributed to Bobby Hall, a dog fighting legend.  The interviewer describes Hall�s house as containing �many trophies, pictures, and other memories of yesterdays Champions and other well known dogs from the past when dog fighting was not yet a felony and a popular spectator sport.�

As to the claim that the activity is a sport, one can find no better refutation than that given by Robert Byrd, Senator from West Virginia, on the floor of the Senate shortly after Michael Vick was arrested:

Dog Fight (original source unknown)

�[I]t is hardly a sport. Hardly a sport. It is a brutal, sadistic event motivated by barbarism of the worst sort and cruelty of the worst sadistic kind. One is left wondering: who are the real animals--the creatures inside the ring or the creatures outside the ring? The depravity of dog fighting is a multimillion-dollar business that involves training innocent, vulnerable creatures to kill--to kill--and putting them in a ring to be killed or to kill for the entertainment and/or the profit of their owners and other spectators.� (C-Span has posted a video of the entire speech.)

Harry Louis Hargrove

One dog fighting legend who cannot claim that the accounts of his fights are fictional is Harry Louis Hargrove, who has been convicted at least four times for dog-fighting offenses, most recently in a federal district court in North Carolina.  By his own admission, Hargrove has been involved in dog fighting for over four decades and at one time owned upwards of 250 dogs.    

Two prosecutions of Hargrove were for misdemeanors, in North Carolina in 1993 and 2001, as to which no opinions were issued, appeals being unnecessary because of the lack of deterrent value in the convictions.  The two arrests that will be discussed here occurred in 1983 in Georgia and 2010 in North Carolina.

Georgia, 1983

The Georgia Supreme Court describes what happened one early morning in Mitchell County, Georgia, in 1983:

"[L]aw enforcement officers from Mitchell County, Dougherty County and the GBI [Georgia Bureau of Investigation] raided a dog fight being held in a wooded area on the property of [Harry] Hargrove during the early morning hours. Officers were staked out in the wooded area and converged on the pit area when sounds of dog yapping and moaning could be heard. They also overheard someone say, �I'll take five on that.� When the officers converged on the scene Swetman was inside a square pit with two dogs which were bloodied with wounds on their legs and the head areas. There was blood on Swetman's arms and clothing. Hargrove was apprehended leaving the pit area and Kelly was found hiding in some bushes.�

A separate prosecution of four other men captured during the raid describes the scene of the arrests in more detail:

�[T]he Hargrove farm is located in a remote, rural area of Mitchell County which is accessible only by driving down a �long, dirt driveway.� � When those present saw the officers approach, most fled into the surrounding area. Officers were then able to observe two bloodied and wounded pit bull terriers in the pit. A vast amount of paraphernalia, identified as equipment used in organized dog fighting, was found around the pit. Officers observed a number of other pit bull terriers tied up near the pit and in vehicles parked nearby the pit. The decomposed carcasses of dead animals wired to devices used to train dogs for the purpose of dog fighting were also observed near the pit.�  (Barton v. Georgia, 253 Ga. 478 (1984))

Around 50 people were arrested at the scene with a total of $17,000 in cash in their possession. 

Hargrove, Kelly and Swetman were indicted for the crimes of dog fighting, gambling, and commercial gambling.  The fight took place on Hargrove�s property and under his direction.  Kelly was the referee.  Swetman furnished paraphernalia and acted as a dog handler.  The jury convicted them on all charges, except Kelly was acquitted on the charge of commercial gambling.  

One witness for the prosecution was Marc Paulhus, then southeastern director of the Humane Society of the United States, who has recently become a friend of mine.  Paulhus accompanied the officers on the raid.  His testimony was summarized by the Supreme Court:

�He testified as to the general nature of dogs trained to fight, specifically pit bulls, and how dog fights are booked and how fights between particular dogs are contracted in advance. He identified the uses of certain dog fighting paraphernalia seized on Hargrove's property. Weighing scales marked with Swetman's name were found near the pit. Paulhus testified that most contracts specify a fighting weight and therefore the dogs must be weighed before each match. Washtubs were seized at the scene which are used to wash the dogs before a fight to ensure that no poisoning or paralytic agents have been applied to the dogs' coats.�

Paulhus explained how certain items seized were used.  Breaking sticks are used to pry open a dog�s mouth when they are separated during a fight.  One was found in Hargrove�s pocket.  Treadmills used for enduring and strength training, as was a �catmill,� a similar piece of exercise equipment in which cats or other small animals are used as bait. 

The difficulty of establishing that gambling was involved was discussed in detail by the Georgia Supreme Court in an appeal from a separate trial of a man named William Greene.  Greene argued that the evidence showing his involvement with the dog fight was wholly circumstantial.  The court noted that Greene was �four hundred miles from his home, shortly after dawn, in a remote area of this state where dog fighting and gambling were taking place. Further, Greene was apprehended while standing directly next to a pit where dog fighting was underway with $899 on his person.�  From this the jury could conclude, despite the circumstantiality of the evidence, that Greene was guilty of the offense of dog fighting. (Barton v. Georgia)

On appeal, Hargrove and two other men with whom he was tried attacked the constitutionality of Georgia�s dog fighting statute, which imposed a mandatory fine of $5,000 but could involve a prison sentence from one up to five years.  The defendants argued that one clause in the statute, which makes it criminal when one �causes or allows a dog to fight another dog for sport or gaming purposes��, was unconstitutionally vague because of the verb �allow.� 

The Georgia Supreme Court disagreed, saying that �allow� encompassed knowledge and consent:

�Thus if a person engages on any level in the planning or financing of the event, including paying an admission, providing a location or wagering on the event or if a person encourages the event by applause or cheering, such person violates the statute. The foregoing examples are not, however, intended to exclude other acts which cause the event to occur or contribute to its success.�

The court concluded that the statute was �sufficiently definite to put those of common intelligence on notice that knowing participation in a dog fighting event is prohibited.�  The statute was not, in sum, unconstitutionally vague.

The defendants also argued that the punishment for the crime was excessive and violated the Eighth Amendment prohibition against cruel and unusual punishments.  They cited states where dog fighting is a misdemeanor, with misdemeanor punishments applying.  The court concluded that �a $5,000 fine with an optional one year in prison does not amount to cruel and unusual punishment for those convicted of dog fighting in the state.� �Optional� is a disturbing adjective in this sentence because it suggests the court was anxious to avoid criticism for the possibility of imposing any prison time at all. 

The court also rejected an equal protection argument based on the fact that cockfighting was treated as a misdemeanor under Georgia�s animal cruelty statute, noting that the �legislature has a wide discretion in the exercise of its police power in setting classifications and penalties.� 

Hargrove v. Georgia, 253 Ga. 450, 321 S.E.2d 104 (1984)

North Carolina, 2010

Hargrove�s most recent problems began because neighbors in Duplin County, North Carolina, ceased to be amused by the fights he conducted on his property.  Hargrove then made the mistake of selling an American Pit Bull Terrier to an undercover informant.  He demonstrated the dog�s prowess to the informant by fighting it with another dog on his property.  This justified a search warrant under which police seized 34 dogs that were eventually euthanized because of poor health, aggressive tendencies, or both. A fighting pit on the property was soaked in blood.  Also seized during the raid were break sticks, modified jumper cables used to electrocute dogs, a blood-covered treadmill with wooden sides, a springpole used to build up a dog�s leg and jaw muscles, a �jenny,� used to increase a dog�s stamina by having it run for long periods while chasing bait, animal medicines, and hundreds of canine pedigrees.  A debris pit was filled with, among other things, dog carcasses. 

Hargrove was charged under 7 U.S.C. 2156(b), a section in the U.S. Agricultural Code titled �Animal Fighting Venture Prohibition.�  Criminal penalties for violations of the agricultural law are provided in 18 U.S.C. Section 49, which specifies that violations of the animal fighting law may be imprisoned for not more than five years.  Hargrove pled guilty to the charge.  A probation officer calculated his advisory guideline range to be 10 to 16 months.  Hargrove argued he should get no more than six months.  The federal prosecutor filed a motion for an upward departure from the range provided under sentencing guidelines, citing Hargrove�s �extraordinary cruelty to animals, extreme conduct, and the inadequacy of Hargrove�s criminal history category.�  The prosecutor submitted documentary and photo exhibits that detailed the condition of the dogs seized from Hargrove�s property, a video clip of the demonstration fight Hargrove arranged for the undercover informant, and photos taken during the execution of the search warrant on Hargrove�s property. 

The trial judge asked the government for additional evidence in support of the motion for an upward departure of the sentencing range under the guidelines.  The government presented the testimony of Special Agent Mark Barnhart, who described the tools of the dog fighting trade that trainers use to increase a dog�s aggressiveness and stamina and detailed the injuries that dogs often sustain during fights.  The prosecutor requested that the court impose the statutory maximum term of 60 months. 

Hargrove�s counsel argued that his client was a highly decorated military veteran who had been changed by his experience in Vietnam.  Hargrove himself addressed the judge, �stating that he thought his involvement in dog fighting was wrong and that he had been backing away from it for years.� 

The trial court acknowledged Hargrove was a military veteran who had provided heroic service to his country, but noted that he chose to �discard all of that for this life of brutality and life of cruelty.�  Dog fighting became �the most prominent, distinguishing characteristic of his life,� and the court questioned whether the defendant appreciated the wrongfulness of his conduct.

The trial court, the Eastern District of North Carolina (see map of the Fourth Circuit), imposed a sentence of 60 months.

Fourth Circuit Court of Appeals (USCourts.gov)

The Fourth Circuit Court of Appeals said that although �the sentencing guidelines are only advisory, improper calculation of a guideline range constitutes significant procedural error, making the sentence procedurally unreasonable and subject to being vacated.�  The guidelines are a framework or starting point, which must be considered, but this does not prevent a substantively reasonable variation, which the Fourth Circuit said could be up to 60 months.  �Given the record before us, we cannot conclude that the court's exercise of its sentencing discretion in imposing a 60�month sentence is unreasonable.� The circuit court affirmed the sentence. 

Reaction of the Dog fighting Community

Reacting to a blog account of Hargrove�s arrest in 2010, one commenter stated:

�Such a piece of sh*t blog.  This is just sad.  If you think about the poor guy�s might be in jail or under �supervision� til he dies. Arresting a 78YO man!!! Another great one is done for��  (asterisk in original blog)

Dog fighters take a page from the National Rifle Association playbook.  They see anti-pit bull legislation as leading to the banning of all potential breeds used in dog fighting, much as the NRA sees a ban on assault weapons as leading to a ban on firearms altogether.  Dog fighters argue that large dogs may be the last line of defense for the American family after all the guns are taken away.  All this is stated on the site from which the description of the dog fight at the beginning of this blog are taken.  In particular, play the video labeled �Sean Kennedy is the fucking man!�, posted February 3, 2007.

There is one major difference between the dog fighters and the NRA, however.  The NRA�s lobbying power is opposed by no anti-gun organization of anywhere near comparable size and influence, whereas the dog fighters are up against far better funded anti-cruelty organizations. 

Hargrove�s Prediction for the Future of Dog fighting

Dog after Fight (original source unknown)

For Hargrove in his own words, see a blog interview posted February 15, 2012 (the date of the interview might be different).  In one section of the interview, Hargrove is asked what he thinks is the future of dog fighting.  His answer is defiant, but admittedly practical:

�With the law the way they are it all looks kind of downhill, but if you keep going go in a small groups. Don't go to the bars talking, don't advertise anything you doing to anybody, keep it to yourself. Go do your thing, do your best and you will come home a winner.�

Conclusion

Dog fighting criminals are on notice that at least in the states within the Fourth Circuit�Maryland, West Virginia, Virginia, North and South Carolina�they should expect little leniency.  Congress could help this along by passing section 12213 of the Agricultural Reform, Food, and Jobs Act of 2012 (S. 3240), which would criminalize attending or causing a minor to attend an �animal fighting venture.�  Attending, under this legislative proposal, could bring a sentence of up to one year in prison, while causing a minor to attend could bring a sentence of up to three years. The bill has passed the Senate. Maneuvering in the House will say something about whether dog fighters still have friends in that body. 

Michael Vick�s conviction and the prison time he served had the benefit of telling the world that this criminal activity will no longer be tolerated, at least in some jurisdictions, even for those who can afford good defense lawyers.  (See the prior discussion of sentences in an Illinois federal dog fighting case, U.S. v. Berry.)  As New York City discovered, vigorous prosecution of crimes does not just move a criminal enterprise to a new location.  It often ends it.  That will happen here if more police, more prosecutors, and more courts pursue dog fighting seriously.

U.S. v. Hargrove, 701 F.3d 156 (Fourth Circuit, 2012)

Thanks to L.E. Papet, Eric Krieger, Kingsbury Parker, Bart Sherwood, and Fran Breitkopf for comments and corrections.  Thanks to Jenny Woods of Peta for helping me find the pictures of the victims of this horrid crime. The second and third photographs here may have originally been taken not by photographers who condemn dog fighting, but rather by dog fighters themselves to memorialize the prowess of particular dogs.  For the New York City experience in eliminating crime, see Franklin E. Zimring, The City That Became Safe: New York�s Lessons for Urban Crime and Its Control (Oxford University Press, 2011). See also, Egan, V., and MacKenzie, J. (2012). Does Personality, Delinquency, or Mating Necessarily Dictate a Preference for an Aggressive Dog?  Anthrozoos, 25(2), 161-170 ("Persons lower in Agreeableness, higher in Neuroticism and Conscientiousness, and of younger age actively preferred a dog perceived as aggressive.")

If You See Animal Cruelty, Get Out Your Smart Phone

The primary witness at the trial of Charles Black had a view of the rear balcony of Black�s apartment in Oakland, California.  Several times he saw Black take the dog onto the balcony, yell at it, and hit it with a mop handle.  The witness said the dog yelped and cowered.  Finally he decided to record an incident:

�On June 30, 2009, the neighbor was in his bedroom when he heard defendant's voice and a dog yelping. The neighbor grabbed his camera and went to a sliding glass door from which he could view defendant's balcony. As he was filming, the neighbor saw defendant raise the mop over his head, using both hands, and bring it down on the dog. He swung at the dog �no more than three times,� each time striking the dog �across the back anywhere from the back of the neck to all the way down to the rear.� The dog was yelping as defendant reprimanded it.�

The video was not of good quality, and much of the balcony was obscured by plants.  The defendant was visible but the dog was not, though it was heard yelping at least five separate times above Black�s shouting.  The neighbor testified that he had a much better view than was indicated by the video. 

Black also testified in his own defense about the incident.  He said that he had put the dog on the balcony after it chewed an electrical cord.  He testified that the dog growled at him and that he picked up the mop to indicate that this would not be tolerated.  He admitted that the mop made contact with the dog, but denied raising it over his head or bringing it down forcefully.  He said he nor more than shoved or touched the dog. 

The witness also made a video of an incident that occurred in February 2010.  The court described this video as follows: 

�The neighbor had also recorded the February 2010 incident underlying the second count. This video was of far better quality, unmistakably showing defendant swinging a steel axe over his head and bringing it down on the cowering dog, striking the animal repeatedly. Defendant shouted angrily at the animal as it squealed in pain, in a manner identical to the cries heard on June 30.  A veterinarian's subsequent examination confirmed the dog was wounded by the strikes.�

Black was convicted and sentenced to four years in prison.  He appealed on two grounds, failure to provide a fair and impartial jury and failure to instruct the jury on the lesser included offense of attempted animal cruelty. 

Two Jurors Not Dismissed by the Court

Black argued that his right to a fair and impartial jury was violated when prospective jurors, referred to by their initials, M.P. and A.D., were not excused for cause, leaving him without enough peremptory challenges to remove Juror No. 8. 

M.P. described herself as a very devout Hindu who had been taught not to harm animals.  She said she would try to put aside her beliefs, but when asked whether she could be �completely impartial, unbiased,� responded: �Probably not for this particular case.�

A.D. said he had been abused as a child, making him wonder if he could consider the matter impartially.  He also said that he �already sided� with the prosecutor because he found the defendant�s conduct in the courtroom disrespectful, arriving late and �singing and stomping his feet� as he entered. 

Juror No. 8 spoke to the judge in chambers, which the appellate described as follows:

�[Juror No. 8] explained he was a process server who had been sent earlier that year to serve an unlawful detainer summons on a �Charles Black� at an Oakland Housing Authority building. Because this Charles Black was never at home when Juror No. 8 attempted to serve him, the juror did not know whether defendant was the same person as the subject of the summons. Although he had served residents of the Housing Authority �[o]ver 100 times,� this attempt at service stood out in Juror No. 8's memory because he received a police escort, which only occurred if �guns and/or drugs were involved in the reason for the eviction.� The juror said he would �try� not to let the incident affect his consideration of the case and promised he would not disclose it to other jurors.�

The trial judge denied �for cause� challenges on M.P. and A.D., so defense counsel had to use his two peremptory challenges to remove them.  The court also declined to remove Juror No. 8 for cause. 

To find actual bias on the part of a juror, the court must find the juror had �a state of mind� with regard to the case or the parties that prevented him or her �from acting with entire impartiality and without prejudice to the substantial rights of either party.�  (People v. Horning, 34 Cal.4^th 871 (2004))  Further:

�[A] defendant must show the use of a peremptory challenge to remove a juror who should have been excused for cause left him or her unable to prevent the seating of another juror who should have been excused for cause before a constitutional violation will be found. Because defendant does not argue Juror No. 8 should have been excused for cause, he has failed to demonstrate a violation of his right to a fair and impartial jury.�

A jury consultant once told me that the prejudices people will not admit to are more dangerous than the ones they will express.  None of the jurors who came forth with their qualms strike me as the sort that would dominate deliberations.  We are not told what other rulings were made during voir dire.  Presumably pet owners and former pet owners were excluded, but this only goes so far.  Many people who do not have pets would have them if they or someone in the household did not have allergies, or work assignments make it too difficult to care for an animal. It is hard to imagine an ideal juror from the defense standpoint for this case.

Lesser Included Offense Instruction

The appellate court also rejected the defendant�s argument that there should have been instruction on a lesser included offense, attempt to commit animal cruelty.  The trial court was obligated to give such an instruction only if there is substantial evidence upon which the jury could rely in finding the defendant guilty of the lesser offense.  The appellate court held that �there was no substantial evidence supporting a jury finding that defendant attempted, but failed, to commit animal cruelty.�

Whether to offer a jury the chance to convict of a lesser offense is often an issue in a criminal prosecution.  The cries of the dog argue that this was more than an attempt and the ruling is correct. Nevertheless, were I defense counsel in such a case, I would have made the same argument in hopes that some forceful member of the jury would convince the others that the absence of the dog in the videos means that it was only being frightened, not hit.  The jury would also have to be convinced that the neighbor was making up what his video did not show and that other explanations were possible for the injuries the veterinarian diagnosed. It would be a long shot but defense counsel in unsympathetic cases have to bet on long shots.    

Blueberry (courtesy City of Oakland, California)

Conclusion

The case was surely lost when the videos were played in the courtroom.  Their admission would have been hard to stop by defense counsel as they do not go to Black's character, or his prior behavior, but to the crimes themselves.  The testimony of the witness and the veterinarian confirmed the connection to the specific events giving rise to the prosecution. 

The judgment of the trial court was affirmed, as it should have been.  (California v. Black, 2012 WL 5264545 (Cal.App. 2012))  Black has begun serving his sentence at the California Correctional Facility at Susanville.  A short portion of the second video, the one with the ax, may be viewed on several sites, including that of Oakland Animal Services.  It is excruciatingly painful.  

Vince Faltis, who took the videos of Black and Blueberry, was given a $2,500 reward by the Humane Society of the United States.  He donated $1,000 of the reward to the Oakland Animal Shelter.    

Every day I receive emails about instances of animal cruelty from various organizations, Peta, the ASPCA, Change.org, others.  I cannot open most of them or I go into a rage that prevents me from getting anything done.  Animal cruelty is no longer being regarded as a victimless crime and sentences are beginning to reflect some value to the lives of animals that are terminated or ruined by people who still claim not to be criminals. The Fourth Circuit Court of Appeals recently upheld a sentence of five years for an individual found guilty of arranging dog fights. The sentence had been imposed by the Eastern District of North Carolina even though federal sentencing guidelines recommended a substantially shorter prison term.  (U.S. v. Hargrove, 701 F.3d 156 (4^th Cir. 2012)) The courts are getting it, at least some of them.

Thanks to L.E. Papet for comments.

Police Chiefs and Cities May Be Liable for Bites by Inadequately Trained Police Dogs

Over a year ago we discussed a lawsuit concerning two biting incidents involving a dog, Spike, obtained by the Springboro, Ohio, Police Department for tracking and suspect apprehension. The canine officer, his supervisor, and the municipality itself were sued by two individuals bitten by the dog in unrelated incidents.

In the first incident, in 2007, there was no crime involved as Samuel Campbell had been knocking at doors of his date�s house, trying to wake her up because she had his car keys which he needed to drive home. His pounding caused a neighbor to call the police. Wishing to avoid an interaction, Campbell lay down in a field nearby where Spike and his handler, Officer Nick Clark, found him. Spike bit Campbell for 30 to 45 seconds before Clark got control of the dog.

The second incident, in 2008, involved a search for Chelsea Gemperline, who escaped from a squad car after being detained by police who had been called to a party where there were underage drinkers. When found by the dog, Gemperline was hiding in a child�s playhouse. The injuries caused by the dog were serious and left permanent damage.

These incidents and the ruling of the federal district court denying summary judgment to Officer Clark, the Police Chief, Jeffrey Kruithoff, and the City of Springboro, were described in detail in the prior blog. Now the Sixth Circuit, in an opinion written by Circuit Judge Bernice Donald, has affirmed the district court. A major concern of both the district and circuit courts was that Officer Clark had not maintained the desired training regimen with Spike. As Judge Donald states:

�Prior to both bite incidents at issue in this case, Officer Clark notified his supervisors that he had been unable to keep up with the maintenance training and repeatedly requested that they allow him time to attend training sessions, but his requests were denied.�

Sixth Circuit (USCourts.com)

This failure was deemed not merely that of the canine officer, but also a failure on the part of the Chief of Police and of the employer of both officers, the City of Springboro. Police supervisors and governmental authorities in the Sixth Circuit are now on notice that failure to maintain adequate training regimens may lead to liability when a police dog�s aggressiveness involves excessive force.

Was Spike Trained in Both Bark-and-Hold and Bite-and-Hold?

It is not clear that Clark was effectively training the dog even when he engaged in training programs. The initial trainer, Brian Woods of Lynwood Kennels, from whom Spike was obtained by the Springboro Police Department, testified that he had trained spike in the bark-and-hold method. Clark, however, testified that in a tracking situation, he expected that �even where the subject was compliant and not attempting to resist or flee, Spike was expected to bite the subject unless Clark saw the subject and restrained Spike verbally or physically.�

Clark may have believed that bark-and-hold would apply to off-leash situations, but where the dog was on a leash, bite-and-hold would apply. In any case, it appears that Clark may have countered the initial training that Spike had received by introducing the bite-and-hold method. It should come as no surprise that the dog bit the individuals involved in the two incidents giving rise to the litigation, and even if Clark had kept up an adequate training regimen, a dog taught to use the bite-and-hold method should never have been allowed to approach someone who was not known or reasonably believed to be dangerous.

Qualified Immunity in Dog Bite Cases

The Sixth Circuit has considered dog bites a number of times.

In Robinette v. Barnes, 854 F.2d 909 (6^th Cir. 1988), a burglary suspect was killed by a police dog. The Sixth Circuit concluded that the canine handler �had probable cause to believe that Briggs, a suspected felon hidden inside a darkened building in the middle of the night, threatened his safety and the safety of the other officers present.� Consequently, the police were �justified in using whatever force was necessary, even deadly force,� to protect themselves.

In Matthews v. Jones, 35 F.3d 1046 (6^th Cir. 1994), the canine handler warned the suspect that he was going to release a dog to apprehend him, and when the dog found the suspect hiding in the weeds, the officer told the suspect not to move, �advising that if Matthews remained still, Roscoe would be recalled. Matthews chose to move, and Roscoe enforced the order.� The court also found that the dog was properly trained.

On the other hand, in White v. Harmon, 65 F.3d 169 (table), 1995 WL 51886 (6^th Cir. 1995), an officer allowed a minimally trained dog to bite a handcuffed suspect. Here, summary judgment was denied to the officer. This case was seen by Circuit Judge Donald as analogous to the arrests of Campbell and Gemperline, neither of whom were actively fleeing or showed any ability to evade police custody. Clark failed to provide warnings in either situation and believed that Gemperline might still be handcuffed, yet used a dog which he had taught to bite and hold.

Chief Kruithoff�s Liability

A supervisor is not liable, under 42 U.S.C. 1983, for deprivation of a suspect�s rights under state law for failure to train unless that supervisor �either encouraged the specific incident of misconduct or in some other way directly participated in it.� Shehee v. Luttrell, 199 F.3d 295 (6^th Cir. 1999) Judge Donald concludes that this level of supervisory failure was involved in the case involving Springboro:

�Although Kruithoff was not actively involved in the incidents involving Spike, a causal connection between his acts and omissions and the alleged constitutional injuries is suggested by the record. Chief Kruithoff allowed Spike in the field even after his training had lapsed. He never required appropriate supervision of the canine unit and essentially allowed it to run itself. He failed to establish and publish an official K-9 unit policy, and he was seemingly oblivious to the increasing frequency of dog-bite incidents involving Spike. Furthermore, Chief Kruithoff ignored Clark�s many complaints regarding his need to keep Spike up to date on his training. Thus, Chief Kruithoff�s apparent indifference to maintaining a properly functioning K-9 unit could be reasonably expected to give rise to just the sort of injuries that occurred.�

Liability of the City of Springboro

The district court had found that the �systematic failure to train or supervise police officers adequately can amount to deliberate indifference on behalf of a city towards its inhabitants.� The municipality�s motion for summary judgment was, therefore, denied. The Sixth Circuit did not review the substance of this issue, however, because the municipality was not entitled to invoke the defense of qualified immunity and therefore had no grounds to seek an interlocutory appeal of the district court�s denial of its motion.

Further analysis at the appellate level of the city�s responsibility in the matter will have to await an appeal from a final decision of the district court, should that come about. In analyzing the district court�s decision, we suspected that the matter might be settled given the district court�s attitude towards the defendants. Such speculation might not be inapposite here, though we were obviously wrong in anticipating an early end to the litigation.

Separate Opinion of Third Member of Circuit Court Panel

Circuit Judge McKeague, concurring in part and dissenting in part, agreed that Officer Clark was not entitled to qualified immunity and not entitled to immunity on the state law claims for assault and battery. He did, however, think that Chief Kruithoff was entitled to qualified immunity on plaintiffs� claim that he is individually liable for Clark�s use of excessive force on a theory of supervisory failure-to-train liability.

Conclusion

Police supervisors and government entities that employ them should take careful note of this case. A poorly trained dog, particularly one whose inadequacies are due to policies that do not allow a canine handler enough opportunities to train the dog, can carry liability for the dog's actions up the ladder of authority.

Although the focus of the decision concerns the lack of time that the handler was being given to train his dog on departmental time, it must also be questioned whether the dog was, even when it was being trained, actually getting good instruction. Why was the dog trained in the bark-and-hold method initially? Presumably, there was a desire to use the dog in a range of responsibilities where biting would not be appropriate. Then it must be asked why the dog was subsequently taught to use a bite-and-hold if its responsibilities remained unchanged. Was the change in apprehension method the result of Clark coming under the influence of a chapter of one of a training organization whose members had a strong preference for bite-and-hold work? Did the Springboro Police Department have any policy outlining when each training regimen would be used? Apparently not, but someone should have thought through this. A dog that is brought up to use the bark-and-hold method should not subsequently be taught to use the bite-and-hold method in any situation unless it is to be retrained entirely and its responsibilities appropriately limited.

The court emphasizes the fact that Clark frequently complained of the lack of opportunity he was being given to train Spike. This is a significant reason for the liability moving up the administrative ladder. Even without Clark�s complaints, however, Chief Kruithoff should have been reviewing Spike�s training records, and probably should have noticed that Clark was introducing the bite-and-hold method. Upon learning this, Kruithoff should have limited assignments where Clark could use Spike. This reason for liability would have existed even without any lapses in training.

Spike was certified by the Ohio Peace officer Training Commission and the Office of the Attorney General at the time of the incidents. As discussed in Police and Military Dogs, certification has been accepted by some courts as enough to allow a dog to work in narcotics detection and other disciplines, without any further analysis of training records required. It appears to be a curious anomaly that certification alone might satisfy a court that a dog could provide evidence of criminal activity even if its training has not been maintained, but the same dog could produce liability for excessive force if it bites someone during a police action.

For other cases where police dog bite liability has extended to supervising officers and municipalities, see Police and Military Dogs, pp. 271-2. The potentially deeper pockets of governments employing police dogs is sure to make this case of interest to the growing bar of dog bite lawyers. Public sector insurers may consider boiler plate to limit coverage for inadequately trained police dogs.

This blog was written by John Ensminger and L.E. Papet.

Campbell v. City of Springboro, 700 F.3d 779 (6^th Cir. 2012)