Tracking Dog�s Alert Helps Convict, but Should It Have Been Accepted as an Identification?

When the U.S. Supreme Court hears arguments in Harris v. Florida (Docket No. 11-817) this fall, it is likely to determine whether training and certification are sufficient to establish a drug dog�s reliability for a search of a vehicle.  The Florida Supreme Court determined that the prosecution had to produce the dog�s field records and had the burden of establishing probable cause. 

In a recent California case, the tracking and alert of an uncertified tracking dog that would probably not have met the reliability standard required of a detection dog in Florida was admitted to establish the identity of the perpetrator in a murder.  Although the U.S. Supreme Court will not consider a tracking case, its pronouncements regarding training, certification, field records, and the evidentiary burden to establish reliability are likely to affect future decisions in cases such as the one we analyze here.

A Murder in Southern California

Carlos C. was shot and killed as he rode on his skateboard in Ontario, California, the evening of November 6, 2008.  The shooter was described as a black man wearing a hooded sweatshirt and khaki shorts.  Officer Louis Mena was the first to arrive, finding Carlos alive but not responsive.  He was pronounced dead in a hospital emergency room a short time later.  He had been shot twice in the back. 

               

One witness, Jair Monares, who had encountered Kevin Tyron Stanford shortly before the shooting, described Stanford pulling a gun on him and shooting it in the air.  Monares picked Stanford out of a lineup and testified that he had seen Stanford wearing a hoodie and shorts.  Another witness, Maricela Sierra, heard someone yell �Black Crips� and went out from the laundry room of her apartment where she saw a black man wearing a hoodie and khaki shorts chasing someone riding a bicycle. 

               

A third witness, Raul Ramirez, was riding his bicycle when he heard gunshots and then encountered the defendant, whom he identified at trial.  Stanford apparently said to Ramirez, �What the hell are you looking at fuckin� Mexican.  Go back to Mexico, fuckin� wetback.�  Ramirez rode off but Stanford chased him.  The bicycle�s chain derailed and Ramirez fell against the curb.  Stanford took the bicycle and fled.  Maricela Sierra, having caught up with Ramirez, helped him describe events to the 911 operator. 

               

A fourth witness, Jessica Villalobos, who happened to be Jair Monares�s girlfriend, saw a black man from the second floor apartment where she lived, then later heard gunshots after which she saw a body on the sidewalk and a skateboard rolling down the street.  She saw the defendant pick up the bicycle and head towards a church.  She called Monares, who left his house and saw Stanford for a second time, though this time Stanford did not look at or speak to him. 

Ava Stone was returning to the apartment which she shared with a number of people at about 7:30 when she was stopped by a police officer, who told her that a suspect in a murder had been seen entering her apartment.  The officer asked her to have all males in the apartment over 18 years old come outside.  The defendant was in a bathroom and ignored her request, so she and another man told the police.  The defendant came out after taking a shower and changing his clothes. 

Monares and Ramirez were brought by the police to the area. Monares recognized and identified the defendant as the person he had twice seen as events unfolded. While Ramirez recognized the defendant, he was too afraid to make a formal identification at that time. The Ontario police also brought a bloodhound, which followed a path from the place where Ramirez�s bicycle had been abandoned to the defendant as he stood in a group of about six black men.  

K-9 Willow and Officer Rivera

Willow was a purebred bloodhound that had been acquired by the Pomona Police Department two years before the incident.  Willow�s handler was Officer Cesar Rivera, who had been a K-9 handler for 14 years.  Before Willow, Rivera had handled two Belgian Malinois, both trained in patrol work and narcotics detection.  Rivera had in fact written the proposal for the police department to acquire a bloodhound.  Further details concerning Rivera and Willow were described by the court in summarizing Rivera�s testimony:

�[The] Pomona Police Department obtained Willow from a foundation in Florida that has a training facility in Georgia. Willow had been trained to track for almost a year by a trainer at the foundation and had also been used in the field by law enforcement agencies before Pomona Police Department acquired her. In her work for the other law enforcement agencies, Willow had done approximately six or seven finds, i.e., where she actually tracked and located someone. Rivera trained with Willow at the Georgia facility for a week before bringing her back to Pomona. Rivera described the training, which involved the use of a training track and keeping a log of the dog's performance. After he brought Willow back to Pomona from Georgia, Rivera spent two to four hours a day for two months training her to do hard surface tracking before putting her in the field. Rivera kept logs and only put Willow out into the field when �she was very reliable where she actually stayed on the track and located the decoy.��

It is clear the dog received training prior to being acquired and brought to California. The prior training and use of the dog by other law enforcement agencies should have been explored as it might have indicated problems which caused the other agencies to return the dog to the foundation.    

Curiously, Rivera apparently testified that there is no test or certification for bloodhounds. This is incorrect since a number of organizations have testing and certification programs for tracking dogs. See, e.g., the National Police Bloodhound Association. The intent may have been to state that the police department itself had no formal program.  Rivera acknowledged that Willow had bad days�he said about 5% of the time�when she did not perform well. Rivera provided Willow�s training logs to the defense.

Rivera described how Willow works:

�Rivera described for the court how he gets Willow to track, a process that involves taking her to where the subject was last seen, having her sniff an object that contains the subject's scent, and then telling her to �go find him.� Willow then sniffs around, finds the direction of travel, and �once she finds the direction of travel, then she's on the go, she's tracking.� Rivera trains Willow every day he works with her, which is about 16 hours each month, and once a year he goes back to Florida to meet with other handlers and exchange information.�

It was not clear what was in the records Rivera kept of these daily training sessions.  If they involved tracking of volunteers, more information about the team�s skills could have been obtained from them.

Willow at the Crime Scene

Rivera took Willow to Ramirez�s bicycle, which had been left near a church.  Rivera had Willow sniff Ramirez so as to eliminate him as a tracking subject, a procedure called �the missing member,� which is described in Police and Military Dogs, Chapter 5: Scenting to Items or Locations with Odors of Multiple Individuals.  (We note that one expert described the procedure as �not wholly reliable�.)

The court described Willow�s actions in the investigation as follows:

               

�Willow sniffed various parts of the bike, and then proceeded on her own track. Willow followed her nose through a hole in the brick wall between the alley and the church, down the alley to Parkside, through Stone's apartment complex, and straight to six or seven men who were lined up in the middle of the street, shoulder to shoulder. After sniffing each of the men, Willow sat down in front of defendant, which Rivera explained means she had matched the scent she picked up from the bike with defendant. Officer Rivera walked Willow away from the area briefly while the men moved to stand in different positions. Rivera then returned with Willow and gave her the command to go find him. Willow again sniffed each person and alerted on defendant by sitting down behind him.�

It is to be noted that Willow had not followed Stanford's path exactly, since he had gone into the building where he took a shower and changed his clothes. 

Optimal scent lineup design often specifies that different foils should be used in separate lineups, since a situation such as the one described here, occurring moments after the initial identification, is likely to produce the same result, perhaps because of some attractiveness of the person alerted to that may be unrelated to the scent of the trail. 

No mention was made of research that has indicated that dogs may be more accurate when following a trail than when identifying an individual at the end of the trail.  In an experiment conducted near Phoenix, dogs followed the correct trail from a test site where an improvised explosive device was detonated to the area where the person who �set� the device was standing, but in several trials the dogs then identified the wrong individual.  (See Police and Military Dogs, Chapter 5: Is Trailing More Successful than Identification?; also see prior blog regarding the research.)

Court Rejects Application of Standard for Admission of Scientific Evidence

The defense attacked the introduction of the canine testimony by asserting that it did not meet requisite scientific standards under California v. Kelly, 17 Cal.3d 24 (1976) (California adheres to the somewhat more difficult but now superseded federal standard enunciated in Frye v. U.S., 293 F. 1013 (D.C.Cir. 1923), rather than the looser standard adopted by the U.S. Supreme Court in 1993 in Daubert v. Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).)  The court rejected the argument, as California courts have before, saying that dog tracking evidence did not involve a scientific technique subject to Kelly. The California appellate court acknowledged that scientific validity might have been required had the police used a scent transfer unit to place the scent given the dog on a pad. Although not a lineup, the court states to �the process by which Willow identified defendant involved tracking or trailing,� meaning that the selection of Stanford in the group fits within a procedure sometimes referred to as a �station identification.�   

We have previously described a tracking case where tracking law was strained to cover a station identification by a California Court, essentially tracking law to a poorly constructed scent lineup.  The court here perhaps assumed that an identification based on all the scents emanating from an individual at the end of the track would be more accurate than an identification based on matching specific scents left on objects that a criminal may have held.  Yet even in highly controlled scent lineups, experienced dogs can pick a foil over the target.  The risks are even greater with a lineup of people as opposed to a scent-matching procedure.  Generally speaking, European scent lineup technology has long rejected the use of lineups of individuals.  As noted in Police and Military Dogs, one Dutch researcher writing as far back as 1936 stated:

�It is still more dangerous to let a dog choose a person out of a row of people on the score of the odour of an object offered to the dog. Even if the trainer knows nothing about the test, and has himself no suspicion of anybody, there still remains the possibility, by no means a light one, that the dog may respond to the faintest movement of one of those persons.� 

In other words, cueing inducing an alert could come from behavior exhibited by the handler, the suspect, or another person present and visible to the dog.

Further, the description of the tracking does not specify the length of the track involved, which has been found to correlate with the accuracy of an identification at the end of the track.  (See Chapter 4: Length of the Trail, noting that the longer the trail, the more likely the dog would not follow a decoy who had been walking with the target when the two people separated and left separate trails.) 

Foundation for Admission of Tracking Evidence Deemed Satisfied

The court here cited the necessary elements for tracking or trailing evidence to be admissible:

(1) the dog's handler was qualified by training and experience to use the dog;

(2) the dog was adequately trained in tracking humans;

(3) the dog has been found to be reliable in tracking humans;

(4) the dog was placed on the track where circumstances indicated the guilty party to have been; and

(5) the trail had not become stale or contaminated.

Since the court determined that this foundation had been established, �the trial court did not abuse its discretion by admitting evidence that Willow tracked defendant from the bicycle to where defendant stood in a group of men.�  It is not clear whether Rivera knew who Stanford was.  Although it might be assumed based on the court�s description of when he and the dog arrived that no one had identified Stanford to him, or described Stanford in sufficient detail for him to make the identification himself, it is not clear that this issue was investigated in cross-examination or otherwise.  If Rivera had knowledge that could have allowed him to deduce who Stanford was in the group, the risk of cueing by the handler is significant. 

Reliability of the Canine Team

Defense counsel attacked Willow�s reliability:

�[D]efendant first cites the purported absence of a log documenting Willow's success rate. In defendant's view, the �hundreds of pages of reports� Officer Rivera produced did not constitute a �log� and therefore did not establish Willow's reliability in tracking humans. Defendant concedes that Officer Rivera testified to Willow's reliability, i.e., she is on the mark 95 percent of the time. If, as defendant contends, that figure was a �guestimate� on the part of the officer, that is a circumstance that goes to the weight the jury should give the tracking evidence, but it does not affect the admissibility of the evidence.�

It is not clear if the hundreds of reports could have been distilled by defense counsel into intelligible evidence, or if counsel even attempted to do so.  It may be supposed that this was either impossible or not done since an accurate success rate would have obviated the need for a �guestimate� and allowed inquiry into questions such as how many trails went cold and how often the dog alerted when encountering an individual at the end of the trail.  If the materials could not answer such questions, it must be questioned whether reliability was in fact established.   

The defense also argued that the tracking evidence was inadmissible because Rivera had no formal training.  This too the court rejected:

�Although defendant takes issue with the extent of that training, he does not identify the specific deficiencies or recount the additional training Officer Rivera should have had in order for the tracking evidence to be admissible. Defendant also claims that the absence of licensing or certification affects the validity of Officer Rivera's testimony regarding Willow's reliability because Willow's performance has not been independently evaluated. Defendant's claim assumes that if a licensing organization existed, it would require independent assessment. The claimed deficiencies, if any, go to the weight of the evidence and not whether it is relevant and therefore admissible.�

Again, the implication is that independent testing is unavailable, which is not the case.  Also, it seems as though the burden of establishing the dog�s reliability did not lie with the prosecution, but rather that the defense had to establish that the dog was not reliable.  (In Harris, which the U.S. Supreme Court will consider, the State of Florida asserts in its appeal that the court placed �an excessive evidentiary burden� on the prosecution, by requiring the production of a dog�s field activity reports. Curiously, the State of Florida�s brief in Harris notes that �California courts do not require evidence of a dog�s success rate in the field to establish probable cause.�)    

The defense apparently argued that Willow had been used to find lost children and that this was not the same as tracking a criminal.  More needs to be known about the team�s work to judge the level of her tracking skills in situations such as was presented during the investigation here.   

The defense was grasping at straws in arguing that there was no other evidence that the defendant had gone through the brick wall.  The prosecution was required to demonstrate that the dog was placed on the track where evidence indicates the target had been�here, the place where the bicycle was abandoned.  It is not necessary to show that every place along the trail followed could be established by other evidence than the path the dog took.  That the dog went to the group of men rather than to the apartment where the defendant had been for some time may indicate that the defendant had created a cross-track somewhere outside the apartment, which the dog followed as having the stronger or most recent scent, but as with a hunting dog, a tracking dog may follow the stag after it crosses over its initial trail. In a station identification, the tracking dog usually resumes tracking at the station because the scent it has been given is again detected and the dog follows the scent to an individual and alerts as an identification. 

Having rejected other challenges, the court affirmed the murder conviction.

Conclusion

Science will out in the end, though it may take a long time.  We are not arguing that a Frye or Daubert hearing should be held to admit tracking evidence, but we are saying that the foundation should be established before the jury hears about the tracking and that scientific research can inform the analysis of the foundational requirements.  It is not clear from the court�s description if the dog was adequately trained or if it is a reliable tracker. Thus, at least two out of the five foundational elements are in serious question.  Also, the dog�s reliability in scent identification was not even alluded to and the dog�s alert, though generally admissible under American law, should have been acknowledged as perhaps due to other factors than a matching of scents.   

When the U.S. Supreme Court hears Harris this fall, it may consider why training and testing records for some drug dogs demonstrate much higher accuracy than field records.  The mantra that too many handlers repeat about residual odor cannot hide the fact that U.S. Supreme Court precedent has given narcotics canine handlers the power to support searches of luggage with minimal and cars without reasonable suspicion, providing a means of acting on a hunch.  Similarly, poorly designed and implemented scent identification procedures provide an identification that can be introduced with minimal corroboration.  If that identification occurs under a procedure that does not have a high probability of producing an accurate result, as has happened with almost all judicially described American scent lineups, then a court which approves such a procedure provides a fallback for getting a conviction when other evidence is lacking or disappears before it can be presented to the jury. 

This case amounts to a sort of station identification, though it did not take place in a police station.  It would not have been acceptable evidence in the Netherlands, where even much more rigorously controlled and scientifically supportable scent identifications are no longer deemed acceptable evidence. (For the history of this, see Ruud Haak, K9 Fraud!)  Nevertheless, with requirements of corroboration, and cautions to juries about limited value, such identifications have a long tradition of being admissible in American courts.

There was a good deal of eyewitness testimony in the prosecution of Kevin Tyron Stanford and the canine identification, even if improperly admitted, was only one of a number of identifications and could probably be termed harmless error.  Therefore, though not without serious flaws, and certainly not elegant, the decision probably reached the correct result. 

Regardless of how the Supreme Court rules in Harris, its thinking regarding training, certification, the keeping of field records, and the placement of evidentiary burdens in canine narcotics detection cases, will only be dictum for a court considering facts like those presented in this California case.  Nevertheless, the high Court�s reasoning will provide grist for judicial mills across the country and a decision such as California v. Stanford may not be made under precisely the same logic in the future. 

California v. Stanford, 2012 WL 1365744 (Ct. App. 2012)

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

Scent ID Dogs Found More Accurate in Scent Lineups of Women than of Men

Research in which I participated appears in the May 2012 issue of the Journal of Forensic Sciences. The lead researcher was Tadeusz Jezierski of the Polish Academy of Sciences, Department of Animal Behavior, who is a co-author of two chapters in Police and Military Dogs which deal with scent identification and scent lineups. I am constrained by contract from covering this development at the level I probably would had I not been a co-author, but a brief reference is appropriate. The research concluded that dogs in controlled trials more accurately distinguished the hand odors of women than the hand odors of men. If the target odor, the scent that the dog was supposed to match, was that of a man, the dogs were more likely to falsely alert to another man than was the case if the target odor was that of a woman. Also, in single-gender lineups, when all the odors were those of men or those of women, dogs were more likely to pick the correct woman than the correct man in a lineup. We note that the ability to identify individual women's hand odors better than men's may be due to gender differences in chemical compounds or due to a greater "attractiveness" of human female odors. As we discussed in Police and Military Dogs, scent identification of women is less common than that of men, but lawyers and expert witnesses in cases where the conduct of a scent lineup is in issue may find the research helpful in developing certain positions at trial or on appeal.

Jezierski, T., Sobczynska, M., Walczak, M., Gorecka-Bruzda, M., and Ensminger, J. (2012). Do Trained Dogs Discriminate Individual body Odors of Women Better than Those of Men? Journal of Forensic Sciences, 57(3), 647-653, May 2012 (DOI: 10.1111/j.1556-4029.2011.02029.x).

Bed Bug Beagle Dispute Lands in Federal Court

Dixie is a beagle trained to detect bed bugs.  Dixie is owned by Western Industries-North, LLP, which provides pest detection and removal services in the mid-Atlantic region. Western got into the canine bed bug detection business in 2009 by acquiring Dixie, who was purchased from trainers in Florida for $10,400.  After getting Dixie, Western expanded its bed bug business by buying new dogs and hiring new handlers. by January 2012, Western owned four scent dogs and employed four handlers. 

Lessard Hired as Handler

A month after acquiring Dixie, Western hired Blaine Lessard to be Dixie�s handler. Lessard signed an employment agreement in which he agreed, upon termination of his employment for any reason, to return to Western �all such equipment and property� that had come into his possession by reason of his employment.  The agreement also contained non-solicitation and non-compete provisions, which prohibited Lessard from soliciting business from Western�s customers for two years.  He could also not set up a competing business in the same counties in which he worked for Western for two years after a termination of his employment. 

Moonlighting was also prohibited in an employee handbook that stated: �Employees are not allowed to work for another pest control or fumigation firm or to be in business for themselves in the pest control or fumigation business.�  Violation of this provision could result in immediate termination. 

Lessard received $50 each month for boarding Dixie, though Lessard claimed he never received this amount and, in any event, it was insufficient for the expenses involved.  Western promoted its business through media placements featuring both Dixie and Lessard. Dixie brought in about $100,000 a year for two years.  While working for Western, Lessard became familiar with the company�s pricing models for bed bug detection services, as well as learning who Western�s bed bug customers were and what problems they were having. 

Dixie and Lessard became local celebrities in southern Maryland. See the May 15, 2009, article posted by Southern Maryland Newspapers Online

Lessard�s Moonlighting

In November 2011, Western learned that Lessard was using Dixie to provide bed bug detection services for his own customers.  Western found this out because Lessard inadvertently faxed a worksheet to Western�s office which revealed that, on a day Lessard had taken off from work, he had gone to Pennsylvania to provide bed bug detection services for a business that was not a Western customer. 

In February 2012, Western discovered a website for a competing canine bed bug detection company with the name of American Canine Scent Detection, which featured Lessard and Dixie and cited their extensive experience.  The website said that American provides bed bug detection services to hotels, motels, hospitals, senior homes, apartments, theaters, and offices.  The website also claims that American �has searched over 70,000 rooms on the east coast from Manhattan to Virginia Beach.� Lessard also had a Linked-in page stating that Lessard was a Master Canine Handler and Trainer with American Canine Scent Detection. Lessard�s wife had registered American Canine Scent Detection as a trade name in late 2010. 

Western determined to terminate Lessard�s employment and recover Dixie.  Lessard refused the give Dixie to Western, saying, according to the employee who terminated Lessard: �You�re not getting the dog.  There�s no way you�re gonna get the dog.�

Western Seeks TRO

On February 23, 2012, Western filed a complaint and an emergency motion for a temporary restraining order seeking the return of Dixie, to stop Lessard�s competing business, and to require that Lessard not disclose any client information in violation of his employment agreement. 

Lessard threw up a smokescreen of arguments in response to Western, claiming that the training academy in Florida transferred title to Dixie directly to him, that he paid for Dixie�s travel expenses and purchased dog supplies for her, that he provided additional training and kept Dixie�s testing and certifications up to date.  Lastly, he claimed that Dixie was a rescue dog of no value, and that Western had abandoned her to Lessard�s care.  He asserted that the $10,400 paid to the Florida training academy was for training services and not for Dixie. 

The federal district court rejected all these claims, and concluded that Western�s breach of contract claim will likely succeed on the merits.  The court concluded that Western �will clearly lose future business so long as Defendants [Lessard and his wife] continue to hold Dixie.  Thus, mandatory injunctive relief was deemed appropriate.  Lessard was ordered to return the dog and to cease operating his competitive business. 

Conclusion

As one of the most lucrative detection dogs in the private sphere, it can be expected that disputes and lawsuits will arise regarding their use.  The case appears to be one of an employee who understood his employment contract to be a pile of meaningless boiler plate which did not really apply to him.  He may have even convinced himself that the relationship he no doubt developed with Dixie superseded any limitations imposed under his contract with Western.  The fact that Lessard created a website his employer was likely to find sooner rather than later may indicate that he actually believed that he owned Dixie. 

The law appears to have been a minor headache to Lessard.  Western was justified in making it into a major headache for him.  My only concern is Dixie, who probably became accustomed to Lessard�s companionship.  Unfortunately, dogs rarely get to choose their owners, or handlers.

Western Industries-North, LLP v. Lessard, Docket No. 1:12cv177, 2012 WL 859459 (E.D. Va. 2012)

Thanks to L.E. Papet for suggestions.  

Base Commanders Begin Implementing Restrictive Army Policy on Service Animals

Additional Notes.  In an early revision to this blog, I had added a comment that in the April-June 2012 U.S. Army Medical Department Journal, Lieutenant Commander Kathleen L. Watkins of the U.S. Public Health Service states that "the US Army Veterinary Command, the DoD Executive Agent for Veterinary Services, is in the process of revising TBMED 4.  The revision will include current definitions for animal-assisted activities, animal-assisted therapy, and service dogs."  A revision of TBMED 4 was posted on August 3, 2015.  This, and other developments, will be the subject of a forthcoming blog.  

The U.S. Army policy on service animals, which I described in a prior blog as a poorly considered adaptation of the VA�s poorly considered, though somewhat harmless, service animal policy, is now rippling down the command and across military bases in the United States.  I have been able to review the policies of Fort Campbell and Fort Bliss.

Fort Campbell

On February 21, the Commanding Officer of Fort Campbell, Kentucky, issued a memorandum on service animals at his base, adapting Policy Memo 12-005, issued three weeks earlier.  The Fort Campbell policy reiterates the Army�s contention that the Americans with Disabilities Act is not binding on military but will be followed to the extent practicable.  Here, as with the general policy, the statement does not ring true to anyone who has the slightest familiarity with the ADA.

William G. Howard, the Commanding Officer at Fort Campbell, states:

�This policy provides guidance regarding ownership and accompaniment of animals while attached or assigned to Fort Campbell, KY (FTCKY) WTB [Warrior Transition Battalion] regardless of location.  While each situation will be evaluated on a case-by-case basis, individuals attached or assigned to the WTB, will not be approved for a service animal until the Soldier reaches their highest level of independence and is living off post.�

This makes the curious assumption that the soldier can reach his or her highest level of independence without a service animal in the first place.  The memo says that soldiers residing at medical treatment facilities or on-base members of the base�s Warrior Transition Battalion will not be approved for a service animal �until they have achieved a sufficient level of independence to reside off post in private housing.�  Thus, the memo assumes that a service animal�even in the unnaturally narrow definition the Army is now giving the term�is not to be considered part of a treatment regimen.  It may be that the Army feels that occasional visits from therapy dogs are all that wounded soldiers should expect in early recuperative phases.  The memo elaborates:

�A service animal issued prematurely may not be appropriate since a Soldier�s functional needs may change throughout the rehabilitation process.�  Further, soldiers �in the initial phase of rehab may not be able to provide the daily care a service animal[�s] needs.�  But they may be, so the fact that the statement is true for some becomes true for all. (Perhaps I should note here that the memo is full of grammatical errors, some of which I have taken the liberty of correcting in quotations here so as to make passages more understandable.)

The memo insists that a soldier�s superiors should not be required to take care of a service animal if the soldier returns to inpatient status or declines �in mental status.�  It does not seem to matter that returning to inpatient status or declining in mental status may be increased because a soldier cannot have a service animal. 

The memo requires that soldiers �must have command approval in order to obtain a service animal.�  Approval must also come from a multi-disciplinary team led by the soldier�s primary care manager.  Policy Memo 12-005 had described this team as also �ideally� including other healthcare professions, behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and warrior transition unit staff. 

If this gaggle of officials and professionals agree that the soldier can have a service dog, then he must receive �requisite orientation and training from approved providing/procurement organizations prior to taking possession of a service dog.�  This means the soldier must receive training in use of a service dog from an organization approved by the International Guide Dog Federation (for a guide dog) or by Assistance Dogs International (for �other service, assistance, or alert dogs�).

The Warrior Transition Battalion is not responsible for procuring service animals, so an �[a]ccredited private service animal organization will be permitted to provide service animals on a voluntary basis.�  Organizations not approved by the International Guide Dog Federation or Assistance Dogs International will thus not be permitted to provide service animals, whether on a voluntary basis or otherwise.  

Fort Bliss

On April 4, Major General Dana J. Pittard, Commanding, issued a memo entitled Command Policy Letter #9, Guidance for Acquisition and Use of Service Dogs by Service Members (SMs) Assigned to Fort Bliss and William Beaumont Army Medical Center (WBAMC).  Fort Bliss is a large post covering 1,700 square miles in both New Mexico and Texas. 

The memo refers to Policy to Army Policy Memo 12-005 and tracks it more closely than the Fort Campbell memo. While acknowledging the general coverage of the ADA, it specifically mentions that service dogs �will not be allowed into public pools or their surrounding enclosed areas.�  This is presumably imposed on a fundamental alteration to the environment argument and is appropriate. It is such a specific rule, and so unique, that I suspect someone claiming to have a service dog was actually insisting on bringing it into a pool at Fort Bliss. 

The memo refers to the service member having a permanent profile with a condition that would benefit from having a service dog �as well as exhausted all other treatment modalities for that condition.  A Service Dog is considered a palliative or a treatment of �last resort.��  This is explicit in rejecting service animals as being part of a treatment regimen as early as possible. 

The soldier�s Primary Care Manager is to document �at least 3 potential tasks that the Service Dog will perform mitigating specific disabilities.�  This is probably taken from Assistance Dogs International�s Minimum Standards for Training Service Dogs. It is not clear that many Primary Care Managers in the Army will have a sufficient background in the use of service animals to know what sorts of tasks would be most appropriate for a soldier.  Presumably Fort Bliss is planning some educational seminars for medical personnel that will cover such topics. 

Curiously, the three-tasks requirement is often taken as law though, in a review of federal and state service dog laws conducted by me and Fran Breitkopf several years ago, we discovered that only one state had a law that might possibly be interpreted as requiring three tasks.  The Department of Justice, in the most widely copied definition of service animal allows that though training is required, the dog can �do work or perform tasks.�  Consider, for instance, a seizure alert dog that alerts to a single condition of its master.  Nevertheless, the three-task requirement is consistent with the Army�s recognition of only entities approved by ADI, even if it flies in the face of the ADA. 

The Fort Bliss memo requires that the �annual care plan must include primary and secondary powers of attorney to designate someone to care for and assume all of the owner�s legal rights over the animal, if the owner is incapacitated or otherwise unable to care for the Service Dog.�  A microchip must be put into the dog �whether or not residing on post.�  The dog is to have an identification number on its badge that matches the microchip identification number. 

Service dogs may �be allowed access to all duty areas, to include formations.  On a case by case basis, if the presence of the Service Dog disrupts the mission, the Brigade commander can disallow the Service Dog�s presence at duty locations. All efforts should be made to find an appropriate duty location for the SM [service member] and his/her Service Dog.�  This is appropriate, and shows that the base command actually considered how service animals might co-exist with military activities. 

The memo deals with dogs that do not act like service animals:  

�Service Dogs found to be aggressive towards humans or other animals will lose their recognition from the [William Beaumont Army Medical Center Multi-Disciplinary Team] and be counseled by their unit commander on the ramifications on the loss of loss of recognition.  The Service Dog will revert to a pet status and fall under applicable post pet policies.�

Presumably, the dog could receive additional training and resume service dog status, though this is not stated.

On implementing the policy, soldiers who believe they have service dogs are to provide certain information to their treatment teams, including ADI certification and �[l]iability insurance for harm and damages caused by the dog.�  Then there is a very curious provision:

�In the situation where ADI certification is not provided, but it appears that the dog meets ADI standards, the [William Beaumont Army Medical Center Multi-Disciplinary Team], will at its discretion, grant a waiver for the ADI certification.  In this case, the [service member] and Service Dog will be required to maintain all standards described throughout this regulation.� 

This allows for the possibility that non-ADI service animals may receive official recognition, though probably only for dogs presently being used, since the approval process in the future would not come under this grandfathering provision.  Still, this is a recognition that some dogs on the base may be acting as service dogs without the specific training and certification path that will be required in the future. 

Mascots

It was pointed out to me by a reader that the Army Medical Command Policy discussed in the prior blog specifically mentioned mascots, saying that they may be maintained �for the purpose of advancing esprit de corps.� Such animals receive full medical care as government-owned animals. In a Technical Bulletin issued by Army Headquarters in 2003, DoD Human-Animal Bond Principles and Guidelines (TBMED 4), it is stated:

�Mascots, when utilized properly, can greatly enhance the functioning of individuals and groups. General Eisenhower once said of his Scottish Terrier mascots that were with him during part of World War II, �I especially appreciate my Scotties because they are the only �people� I can turn to without the conversation returning to the subject of war.�  Obviously, we see therapeutic relief for an individual in this instance.�

Unfortunately, the proliferation of service animal types had not happened while General Eisenhower was still alive (much less still in the Army), or this problem might not have arisen since the architect of D-Day obviously had more sense about animals than many current Army brass.  The DoD Technical Bulletin has some additional language of significance:

�Certain specialty animals are essential to the improved functioning of some military family members. These specialty animals include guide dogs for the blind, hearing dogs, and other handicap assistance and/or service animals. The military medical departments of all branches of service should provide leadership in gaining proper recognition, acceptance, and support of these animals throughout the DoD.�

This leadership appears to be lacking these days. I should note that mascots have a long and honorable tradition in American military forces, and have sometimes given their lives to our causes, which my father described in The Complete Book of Dogs.  The picture shows mascots aboard the USS Oklahoma in 1919, later sunk at Pearl Harbor.  An argument could be made that mascots were the first military therapy animals.

The link between war dogs and service dogs should perhaps receive more attention. In World War I, an ambulance dog that was injured dragging a German soldier to safety was allowed to convalesce with the soldier, and both received the Iron Cross together. The training German ambulance dogs received in the war, which included learning to guide wounded soldiers off battlefields, was adapted by members of the Society for the German Shepherd Club (Verein f�r Deutsche Sch�ferhunde) after the war to train dog guides for the blind. Dorothy Harrison Eustis, an American, began working with guide dogs in Switzerland, then brought the technique to the U.S. where she founded The Seeing Eye. In a Marshall Plan-sponsored tour of Germany after the Second World War to find ways to improve agricultural production in Europe, my father met one of the veterans who had begun using a guide dog in Potsdam after WWI.  The USDA had chosen my father as a representative because he had grown up in a German American enclave in Missouri and was relatively fluent in the language. The German veteran he met was on his fifth dog.  The veteran told my father that his fourth dog had been killed beside him by Russian shrapnel in the final days of WWII.   

Veterinary Care

In the prior blog on Army Policy 12-005, I also raised the issue of whether unapproved service animals could receive veterinary care on military bases.  The Policy instructs medical treatment facilities to �[a]ddress veterinary exams and certification, as well as guidance on reasonable precautions to ensure that an animal�s behavior and health are appropriate.�  This statement is made with respect to therapy animals.  The Policy also states that the U.S. Army Public Health Command is to �[p]rovide authorized veterinary care for privately-owned service dogs in accordance with� the Army�s policies on veterinary health services. 

Army Regulation 40-905 provides the following as to service/assistance animals:

�Service/Assistance animals owned by, and essential to, the improved function of a military family member enrolled in any of the Services� Exceptional Family Member Programs (EFMP), or those animals belonging to veterans entitled to animals trained in the DOD AIM HI program or its civilian equivalent training organization, may be provided the same medical/surgical care as provided for DOD-owned animals. These animals include guide dogs for the blind, hearing dogs, and other assistance animals for the physically-impaired that have been trained and certified by an approved organization. However, these animals will be provided such care only as time and resources permit, and charges for supplies and services will be at the same fee schedule as for privately owned animals.�

More generally, the Regulation provides that emergency medical treatment may be provided to privately owned animals �and medical care with the emphasis on veterinary preventive medicine and diseases that present a community health threat.�  The Regulation also states that commanders are to �[c]ontrol privately owned and stray animals at large on military installations through capture, impoundment, disposal, or other physical means.�  Hopefully no commander will go to such lengths with respect to service animals that the Army does not recognize as service animals, but I wouldn�t count on it. 

National Certification

One commenter on my previous blog on this topic noted that some sort of uniformity in certification of service animals could be useful.  Fran Breitkopf and I had explored this idea in an article appearing in the Journal of Animal Law in May 2010.  We noted that it might sometimes be appropriate to acknowledge the certifications of non-governmental groups, but we warned against giving any single group a monopoly on standard setting and testing.  Assigning to one organization, even an umbrella organization, the ability to set certification standards for guide dogs as well as the ability to approve organizations that test trainers and dogs for qualification under those standards, and another organization for other service dogs, is precisely what the VA and the Army are now doing.  This cannot be justified as a cost-cutting measure since many organizations would be willing, indeed anxious, to participate, at no cost to the government, in preparing uniform thresholds for service dog certification, and also willing to develop a fair testing environment that avoids the dangers attendant in privatizing government responsibilities. Also, the Army should clearly seek input from the Department of Justice, which has considered service animal issues extensively and which has rejected any specific certification regimen, or any task-based qualification system (much less a specific number of tasks), looking instead to a functional determination of what a service animal is.     

I have been advised that once a trainer leaves an ADI member organization, the trainer retains no residual authority from ADI because of prior employment by the member organization.  That means that a number of independent and volunteer trainers working with wounded soldiers will not be qualified under the new Army policy.  So even if a trainer is following ADI standards, if he or she does not currently work for an ADI member organization, the trainer will not be able to train dogs that will be accepted by the Army for soldiers who need them.  This will force many trainers to create nonprofit organizations and apply for ADI membership, even though their training procedures will not vary if they succeed in becoming members of ADI, a multi-year process.  Federal agencies should not be able to provide such an economic benefit to a certifying organization when the Army will not be paying for the acquisition or training of service animals. 

Conclusion

I appreciate the communications I have received from various individuals affected by or concerned with the Army�s ill-conceived service animal policy. It is not clear why the Veterans Administration and the Army have gone so far in a direction that is clearly incompatible with the ADA as developed by the Department of Justice and other federal agencies.  For the Veterans Administration it appears to be primarily an issue of limited resources.  For the Army, I�d have to guess that some officials have come to believe that soldiers finding service animals for themselves will somehow lead to a breakdown of discipline among those returning from the front with physical and psychological wounds, perhaps because Army medical personnel are reluctant to admit that a service dog, or even an emotional support animal, may be the best possible adjunct to other therapies. If the issue is that some individuals are claiming that untrained pets are service animals, and such animals are aggressive or otherwise behaving inappropriately on bases, there are many less draconian ways of dealing with such situations.

Thanks to Debbie Kandoll, Jan Moury, Joan Esnayra, and Fran Breitkopf for thoughts and suggestions.

 

New Army Policy Stymies Efforts of Returning Soldiers to Get and Keep Service and Support Animals

On January 30, the Army Medical Command at Fort Sam Houston, Texas, issued a memorandum to provide guidance on the use of service animals, animal assisted therapies, and animal assisted activities in healthcare settings. The memo applies to �all medical treatment facilities (MTF) using animals in healthcare setting (Service Dog programs, Animal Assisted Therapies (AAT) and Animal Assisted Activities (AAA).�

The memo is not just medical or institutional in its applicability, however, since it also specifies that it applies to �recovering service members, Warriors in Transition, eligible members with disabilities, and all other applicable beneficiaries treated within Army MTFs [family members of active duty personnel, etc.], regardless of component or duty status.� The concluding phrase means that just about anyone in the Army with any condition being treated is covered by the policy. The policy memo states that policies and procedures are to be established by local commanders �that are commensurate with this memorandum.� It thus appears that some variation in the application of the policy may be acceptable, and the recent reports about Fort Bliss may not be found at other military bases. (Since this blog was originally posted this morning, I have been advised that there have also been incidents at Fort Carson, Colorado, and Fort Benning, Georgia.)

The �proponent� of the policy is the Chief, Clinical Services Division, Office of the Assistant Chief of Staff for Health Policy and Services. This position is filled by, and the memo is signed by, Herbert A. Coley, who holds a Masters in Health Administration from Baylor University.

The effect of the policy memo is to limit the availability of service animals to returning soldiers and other military personnel by making the process of obtaining a service dog overly complicated and burdensome, as well as severely restricting the channels through which service animals can be obtained. There are many people now trying to help soldiers returning from war zones to obtain service animals to help them deal with physical and psychological injuries, and their efforts are already being made more difficult because of this policy memo.

Defining Service Animals

The memo appropriately begins with a definition of �service animals/service dogs,� stating:

�As defined by 42 USCS �� 12101 et seq., a service animal is �any dog (the Americans with Disabilities Act [ADA] specifically defines service �animals� as �dogs�) that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.�

The definition is correct, but is taken from a regulation (without the parenthetical), not the U.S. Code. The full definition is perhaps worth considering:

�Service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for purposes of this definition. The work or tasks performed by a service animal must be directly related to the individual�s disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal�s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.� (28 CFR 36.104)

The policy memo specifically cites the italicized language in the last sentence of the definition. It is to be noted, however, that the Department of Justice contemplates service dogs, not just emotional support animals, for individuals suffering from PTSD, noting in the preamble to the above regulation (75 Fed. Reg. 56269) that tasks performed by psychiatric service animals include �providing safety checks or room searches for persons with PTSD.�

Applicability of Americans with Disabilities Act

The memo states that neither the federal government nor the Army are covered under the regulations issued with regard to service animals, but insists that �it is the commander�s intent that MEDCOM facilities abide by these provisions to as great a degree as is practicable and when such adherence does not hamper readiness.�

The memo then states that designating a dog as a �service animal� or �service dog� has �significant implications.� It should be noted that the ADA regulations, though specifying that service animals are dogs, did not adopt the term �service dog� to replace �service animal.� This may be due to the fact that the Department of Justice recognizes that certain miniature horses perform guide functions, much like guide dogs, and though not labeling them service animals, the Department has provided for their being treated in most respects as service animals and may ultimately designate them as such in a future revision of its regulations.

The significant implications of a service animal designation are then specified in the Army memo:

(a) It invokes the protections of the ADA, as well as the rights of access to public buildings and programs conferred by federal statute. Within the MEDCOM, it is the commander's intent that such access include (but not be limited to) hospitals, treatment facilities, recreational facilities, barracks, and other structures.
(b) It implies that the individual (service member or beneficiary) maintains possession of the dog, which has been "individually (specifically) trained" to assist with the needs of that particular individual. Therapy animals and activity animals remain within the possession of therapists, providers, and third-party owners; animals that do not meet the definition of a "Service Animal" yet remain in the possession of an individual service member or beneficiary are defined as "Companion Animals" or "Pets" for purposes of this policy.
(c) Individuals requiring a Service Dog generally are expected to require such dog for an extended period of time (typically for life). Such a requirement renders a service member non-deployable.

The first paragraph would seem to mean that access rules for service animals would apply to health care facilities, barracks, and anywhere else. So far so good.

The second paragraph (b) is more problematic. The second sentence refers to therapy animals and activity animals that �remain within the possession of therapists, providers, and third-party owners.� These are not service animals. From my own experience with a therapy dog, I am aware that the ADA does not require that a hospital admit me with Chloe, though most are more than happy to do so. Later paragraphs in the memo elaborate on therapy animals and animal-assisted therapy, but I will not discuss this category further.

The last sentence in (b) is arguably correct, but neglects to consider that emotional support animals under certain circumstances, such as housing situations under the Department of Housing and Urban Development, entitle their owners to access rights that would not apply to pets. A later paragraph provides a comprehensive definition of �companion animals, emotional support animals, pets� and states that these do not meet the definition of a service animal and that the �terms are synonymous for the purposes of this memorandum.� Thus, the fact that the Department of Housing and Urban Development and the Department of Transportation separate emotional support animals from pets is ignored. (The Fair Housing Act applies to off-base housing, so presumably some Army commanders are familiar with its requirements.)

The third paragraph (c) appears to be a military decision. One would not expect service members with service animals to be deployed for combat duty, but it is not clear that service members could not perform many responsibilities despite having service animals. That is a major reason for the ADA rules on service animals in the first place.

The policy memo also defines �service-dogs-in-training� as dogs �undergoing a period of training designed to lead to their ultimate employment as Service Animals.� The memo provides that service-dogs-in-training �may be granted access to barracks facilities associated with MTFs on a case-by-case basis in order to facilitate goal-oriented therapy for Warriors anticipating discharge.�

Responsibilities of Regional Medical Commands

The policy provides that medical treatment facilities are to establish and monitor policies regarding the use of animals, and to �[m]onitor and track service animal employment.� Data is to be collected �in order to gauge the effectiveness of animals on patients� quality of life and therapeutic success.� MTFs are to quantify the demand for service, AAT, and AAA animals, and also record complaints regarding animal behavior. They are to record the �disposition of service members following prescription of a service dog (discharge from or retained on active duty).� It is not clear if this is deemed consistent with the prior non-deployment language for individuals with service animals.

Veterinary Care

The policy memo provides that the U.S. Army Public Health Command is to provide �authorized veterinary care for privately-owned service dogs in accordance with (IAW) AR 40-905.� Army Regulation 40-905 lists authorized veterinary health services for, among other animals, Military Working Dogs and Military Working Horses. It is not clear whether a service member with a dog that was obtained without going through the Army�s procedures could get any assistance for the animal, but given the tone of the memo, this does not appear to be assured.

Service Dogs for Active Duty Service Members
For service members on active duty, command approval is necessary to obtain a service dog. In the PULHES categories (an acronym for: Physical capacity/stamina, Upper extremities, Lower extremities, Hearing/ear, Eyes, Psychiatric (military physical profile)), an active duty service member must have a Permanent 3 profile. Thus, the individual must have �significant defect(s) or disease(s) under good control, not requiring regular and close medical support,� and more importantly, �capable of all basic work commensurate with grade and position.� Again, deployment of some sort seems possible.

The Army wants to make it clear that personnel cannot judge for themselves that they need a service animal, stating:

�Further suitability of an eligible beneficiary for a Service Dog will be determined by a multi-disciplinary team (MDT) led by the beneficiary's primary care manager (PCM). This team would ideally include other healthcare professionals such as (but not limited to) behavioral health providers, physical therapists, occupational therapists, Physical Evaluation Board liaison officers, Veterans Affairs Military Services coordinators, veterinarians, and WTU staff.�

The multi-disciplinary team is to consider �whether a Service Dog would likely mitigate a specific disability.� If this determination is made, the �beneficiary� is to be referred to �an accredited service animal provider.� The primary care manager is to prescribe the service dog for the service member.

Obtaining a Service Dog

To get a service dog, an eligible service member�i.e., one who meets the qualifications and has gone through the procedures described in the previous paragraphs�must receive orientation and training from �approved providing/procurement organizations prior to taking possession of a Service Dog.�

The U.S. Army Medical Command is not responsible for getting service dogs for service members, but the policy memo requires that they may be obtained from �accredited private service animals organizations,� which are those approved by the International Guide Dog Federation as to guide dogs, and Assistance Dogs International, as to other �service, assistance, or alert dogs.� One wonders what policy justification can be given for insisting that the Army will not supply service animals, yet also insisting that a channel inadequate to supply enough animals be used.

Injured Service Members Training Service Animals

The policy memo acknowledges that injured service members �may realize therapeutic benefit from the human-animal bond formed in the training of animals to provide services to others.� This is acceptable if part of a service member�s treatment plan. As to training one�s own animal, the memo states:

�MEDCOM requires that Service Dogs be trained by relevant licensed entities. MEDCOM does not authorize, nor will it reimburse any service member or beneficiary for the costs incurred in training his/her own animal.�

Training standards are those established by Assistance Dogs International. As will be discussed below, the italicized language is inconsistent with ADA policies of the Department of Justice.

Animals in Medical Treatment Facilities

For service dogs in medical treatment facilities, the owner/handler is responsible for care, including veterinary care, feeding, watering, exercising, toileting, and waste removal for the dog. Service dogs are to wear a special vest or harness identifying them as service animals. Owner/handlers must maintain proof of certification, as well as documentation of immunization. Personnel of medical facilities can �request such documentation from owner/handlers as a condition of their entry into healthcare facilities.�

�Service Dogs will remain on leash and under the direct control of the owner/handler at all times with the exception that another person may be designated to care for a Service Dog when the owner/handler must enter a portion of the MTF where the health of other patients might be compromised by the animal's presence or where service animals are otherwise unauthorized.�

Service animals may accompany individuals visiting patients, but �the ward staff, patient, and any roommate(s), if applicable, must all grant permission� for the visit.

Warriors in Transition

There are specific policy requirements for Warriors in Transition:

�Service Dogs will not be issued to Warriors until they have achieved sufficient level of independence to reside off post in private housing. On a case by case basis, a Warrior's MDT may approve the Warrior to begin training with a service dog while residing at a Warrior Transition Battalion (WTB)IWTU in coordination with the WTB Command and the non-governmental organization providing the training.�

Service dogs cannot reside with Warriors in Transition assigned to the Warrior Transition Unit of a medical treatment facility.

VA Proposed Rules

Rules proposed by the Veterans Administration were published in the Federal Register on June 16 (76 Fed. Reg. 35162), and as of this writing have not been finalized. Those proposed rules provided something of a model for the Army�s policy, including restricting recognition of service dogs to those trained by the International Guide Dog Federation and Assistance Dogs International. Many defects to those rules were pointed out by commenters (I commented myself, as well as writing a blog on the VA release), but their damage was, at least in one sense, fairly limited. The VA�s proposal had to do with what dogs would be funded by the agency, and specified that only about 100 a year would receive VA funds, perhaps the majority of which would be guide dogs. Although not a good outlook, the VA�s rules did not preclude a veteran from getting a service dog from other sources, or from getting financial assistance from other sources.

The Army policy, however, gives Army commanders the authority to restrict access of service dogs if medical personnel have not approved the assignment of a service dog to the service member, and to restrict the sources from which a service member can obtain a dog. Given the massive need for service dogs particularly for soldiers returning from war fronts with PTSD, the Army policy is already wreaking havoc at Fort Bliss, where news reports have described soldiers forced to move out of barracks because the base does not recognize their need for a service dog, or does not recognize that the dog a soldier has is in fact a service dog because of how it was trained or who trained it.

Although I believe the VA policy is not well designed, it has something of the nature of an accounting decision to set a priority on a particular source to provide a specific item, with the priority justified by the fact that very limited funds are being made available. Here, the issue is not primarily funding, and a soldier who uses his own funds, or receives help from someone else, is being penalized for trying to satisfy a need outside of official channels when the official channels are woefully inadequate to assist in satisfying that need.

It is also to be noted that the VA proposes a mechanism by which someone who has obtained a service animal outside of the channels proposed by the regulations could nevertheless get the animal qualified by having some additional training or testing. No such mechanism appears to be offered by the Army.

Department of Justice Perspectives

The policy memo�s statement that �it is the commander�s intent that MEDCOM facilities abide by these provisions [Americans with Disabilities Act] to as great a degree as is practicable and when such adherence does not hamper readiness,� is made ridiculous by the policy that is actually outlined by the Army. With the VA�s 2011 proposed rules I was not certain whether the agency failed to analyze and understand the ADA service animal rules issued by the Department of Justice, or simply decided that they were overly complex when making limited funding decisions. With the Army, the VA�s limited understanding has been magnified into a horribly inappropriate Catch 22 quagmire from which soldiers returning from Iraq and Afghanistan will be unable to extricate themselves without a great deal of effort and a not inconsiderable amount of luck.

Several passages in the preamble to the Department of Justice regulations (75 Fed. Reg. 56722) covering service animals are worth noting:

�Certain commenters recommended the adoption of formal training requirements for service animals. The Department has rejected this approach and will not impose any type of formal training requirements or certification process, but will continue to require that service animals be individually trained to do work or perform tasks for the benefit of an individual with a disability. While some groups have urged the Department to modify this position, the Department has determined that such a modification would not serve the full array of individuals with disabilities who use service animals, since individuals with disabilities may be capable of training, and some have trained, their service animal to perform tasks or do work to accommodate their disability. A training and certification requirement would increase the expense of acquiring a service animal and might limit access to service animals for individuals with limited financial resources.�

The Army has gone contrary to this flexible approach by limiting service members� access to service animals to member organizations of two umbrella groups and precluding the possibility of service members training their own service animals. The policy memo also fails to consider that there are many highly qualified training organizations and individuals that are either for-profit or simply not members of the umbrella groups, which can be due to many reasons, yet trainers in such businesses and organizations, or volunteers doing this work because they believe in it, will not be able to help service members seeking service dogs.

Another passage in the same preamble is also important:

�The Department recognizes that there are situations not governed by the title II and title III regulations, particularly in the context of residential settings and transportation, where there may be a legal obligation to permit the use of animals that do not qualify as service animals under the ADA, but whose presence nonetheless provides necessary emotional support to persons with disabilities.�

This has also been ignored by the Army. Although an emotional support animal may not be appropriate in certain military operational settings, it is unclear why military barracks, hospitals, and other environments could not allow dogs providing emotional support that are not trained to the level of service animals.

PTSD

An emotional support animal for someone with PTSD would not be the same as a trained service animal for someone with PTSD. It is not at all clear whether the Army understands the distinction. PTSD is not mentioned in the policy memo at all. The Department of Justice, on the other hand, did discuss this difference in the preamble to its final rules:

�Many commenters requested that the Department carve out an exception that permits current or former members of the military to use emotional support animals. They asserted that a significant number of service members returning from active combat duty have adjustment difficulties due to combat, sexual assault, or other traumatic experiences while on active duty. Commenters noted that some current or former members of the military service have been prescribed animals for conditions such as PTSD. One commenter stated that service women who were sexually assaulted while in the military use emotional support animals to help them feel safe enough to step outside their homes. The Department recognizes that many current and former members of the military have disabilities as a result of service-related injuries that may require emotional support and that such individuals can benefit from the use of an emotional support animal and could use such animal in their home under the FHAct [Fair Housing Act].�

The Department of Justice stated separately that tasks performed by psychiatric service animals may include �providing safety checks or room searches for persons with PTSD.� Further:

�Commenters stated that there appears to be a broadly held misconception that aggression-trained animals are appropriate service animals for persons with post traumatic stress disorder (PTSD). While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression but could include actively cuing the handler by nudging or pawing the handler to alert to the onset of an episode and removing the individual from the anxiety-provoking environment.�

One wonders if the individuals behind the Army�s policy memo are among those with such misconceptions about service animals for persons with PTSD.

Conclusion

The Army�s service dog policy memo is ill-considered and poorly drafted. On its face, it will continue to apply until early 2014, during which time countless more returning soldiers and service members will find their efforts to temper the effects of PTSD stymied by the Army�s restrictive attitude as to who can have a service animal and who can provide one.

Although the Army is not covered by the Americans with Disabilities Act, it appears to feel that ADA policies should be implemented to the extent practicable. The drafters of the policy memo, however, have paid only lip service to ADA concepts, in the end setting up so many roadblocks that many injured and traumatized service members will not be able to obtain service animals in any reasonable time frame, and probably in many cases not at all.

Sources:
1. Department of the Army, Headquarters, United States Army Medical Command, Fort Sam Houston, Texas: MCHO-CL-C, OTSG/MEDCOM Policy Memo 12-005, January 30, 2012 (to expire January 30, 2014).
2. Department of Veterans Affairs, Proposed Rule: Service Dogs, 28 CFR Part 17, 76 Fed. Reg. 35162 (June 16, 2011).
3. Debbie Kandoll. Simplified Explanation of Army�s New Service Dog Policy.
4. An ABC affiliate station, KVIA in El Paso, Texas, has been following incidents arising from the implementation of the Army service dog policy at Fort Bliss, straddling the Texas/New Mexico border.

Thanks to Jan Moury for providing materials used in drafting this blog. Thanks to Debbie Kandoll and Joan Esnayra for corrections and suggested revisions. The Psychiatric Service Dog Society has provided detailed talking points for those affected by the policy.

Additional Note. The link in the first comment below to 28 CFR Part 35 concerns state and local governments. It would apply to state and local agencies that service members might deal with, but not the Army. I also received a request for information on emotional support animals in housing law. See particularly the prior blog on tenants with PTSD, and links therein, including Service and Therapy Dogs in American Society, Chapter 10: Service and Support Dogs as Tenants.

Another Pit Bull Tragedy

Additional Note: This blog was cited in an article that appeared in the Canadian Journal of Applied Sciences, 5(2), 21-25, entitled Dog Fighting in Turkey, by Orhan Yilmaz, Fusun Coskun, and Mehmet Ertugrul, professors at three universities in Turkey.  The authors correctly argue for increased penalties for those convicted of dog-fighting crimes.

In a scene that belongs in an episode of Southland, a 911 caller mistakenly informed the police that a neighbor�s house was being burglarized, which resulted in a young man�s pit bull being shot by the police when they arrived.

Pit bulls are wonderful dogs, but they come with risks. Being large-jawed, they are more capable than many breeds of doing damage with their bites, though no more so than Great Danes, which have obtained the image of gentle giants from Scooby-Doo and Marmaduke but which a century ago, as I have discussed here before, had a bad reputation for aggression. (Petey of the Little Rascals did not remain sufficiently in American consciousness to dominate the image of the breed.) As with any dog, pit bulls can be trained, and often are as calm as dogs can be, but people assume they are vicious because they have become popular with gangs and other unpopular members of American society.

A Burglary That Wasn�t

In Sandoval v. Las Vegas Metropolitan Police Department, 2012 WL 607283 (D.C. Nev. 2012), a 911 call alerted Las Vegas police to prowlers and a possible burglary. Before police arrived, one of the suspected burglars jumped over a fence and was picked up by a maroon SUV. Sergeant Jay Roberts arrived and interviewed the caller, who pointed out the house where he thought there might have been a burglary.

Officer Michael Dunn arrived and Sergeant Roberts told him to cover the back of the home. They were concerned that the burglary might still be in progress. In the words of the court:

�As Sergeant Roberts approached the window to the home with his gun drawn in the low-ready position, he observed three young males moving around in the room�. Unknown to the officers, the three males were Henry and his friends Jordhy Leal and David Madueno, whom Henry had invited over to play video games, watch television, and listen to music.�

Roberts thought the three men might be ransacking the room. He pointed his weapon towards the bedroom window and shouted: �Metro Police, put your hands up.� Officer Dunn entered the home through a sliding door, where he also gave verbal commands to the three young men.

Whether it should have been obvious that the young men were not burglars was not considered by the court, which continued with its description of the events:

�Before complying with the command, Henry told Sergeant Roberts that he had to take care of his dog (a pit bull) who was in the room with them, but was instructed to open the front door. As the suspects exited the room, the dog ran past the young men and lunged at Officer Dunn. When the dog was less than two feet away from Officer Dunn and about one foot from David, Officer Dunn shot the dog in the face. Officer Dunn reported the shooting over the radio and requested animal control. Henry grabbed the dog and Officer Dunn ordered Jordhy and David to get on the ground. Jordhy and David were handcuffed and led outside along with Henry, who was holding the pit bull. While leading the young men outside, the officers inquired as to who they were and why they were on the property. Jordhy and David were sat down on the front lawn for forty minutes while Henry remained with the dog. Henry was understandably upset that his dog had been shot and repeatedly screamed at the officers, �why the fuck they shoot my dog.�� (The version of the order released by the court deleted all but the first letter of the expletive in the last sentence.)

It should be noted at this point that Henry asked for a chance to control his dog, but the officers apparently felt that exigent circumstances precluded any delay to their entry.

Henry was allowed to call his father, Sandoval. When Sandoval arrived he saw the blood on his son, but assumed he had been shot, not realizing the blood was from the dog. Sandoval was pushed against a police car and handcuffed. He began screaming for his medicine, which he needed because of his recent surgery, but got no help for 25 to 30 minutes.

Animal control �eventually arrived on the scene and Henry ran towards the truck and put the dog inside.� Henry remained agitated and was handcuffed and put in the back of a patrol car. He was later released and told to stand behind the yellow tape with his family.

The dog died of its injuries. No one of the family was ever charged or cited for a crime.

Suit Against Las Vegas Police
Sandoval and other people involved filed a complaint with the Las Vegas Metropolitan Police Department for violations of civil rights, excessive force, municipal liability, assault and battery, and false imprisonment. Defendants filed a motion for summary judgment, arguing there was no genuine dispute as to any material fact and that they were entitled to qualified immunity.

The court found that the officers reasonably believed that the three men were committing a burglary. As to shooting the dog, the court stated:

�Upon entering the home, the family pit bull charged at Officer Dunn. Although Plaintiffs claim the dog had never bitten anyone in the past, Officer Dunn had no reason to know that. All that was known was that he stood before three potentially dangerous suspected burglars and a lunging pit bull.�

As to the excessive force claim for shooting the family dog, the court said:

�Plaintiffs also contend that Officer Dunn used excessive force in shooting the family dog. A dog is not a person and therefore is not entitled to protection under the Fourth Amendment. See U.S. Const. amend IV (protecting �[t]he right of the people to be secure in their persons, houses, papers, and effects�) (emphasis added); Altman v. City of High Point, N.C., 330 F.3d 194, 200 (4th Cir.2003) (holding that a dog is not a �person� under the Fourth Amendment). However, an owner may bring a claim against the government actor for violating the Fourth Amendment for an unconstitutional seizure of the owner's property if the manner in which the dog was taken or killed was unreasonable.� (transcript citations omitted)

The court determined:

�Although the loss of the animal is a significant intrusion, the pit bull was charging at Officer Dunn at the time it was shot. Officer Dunn's safety clearly outweighed the loss of the property interest Plaintiffs had in the animal. While Officer Dunn did not attempt nonlethal methods of restraining the dog before shooting, this was a rapidly evolving situation in which Officer Dunn was required to make a split second decision in how to protect himself. Such actions must be judged from the perspective of the officer at the scene rather than with the 20/20 vision of hindsight�. From Officer Dunn's perspective, a pit bull was racing toward him while he was standing before three suspected burglars who may have been noncompliant and reaching for items when Sergeant Roberts first discovered them. Based on the information available to Officer Dunn at the time, it cannot be said his actions were unreasonable.�

Because the officers acted reasonably, the court held that they were entitled to qualified immunity.

No Deprivation of "Familial Association" in Loss of Dog
The plaintiffs also asserted that �they were deprived of the right to familial association when the officers shot the family dog.� The court acknowledged that this was a traumatic event for the family, but said the �right to familial association generally only applies in parent-child relationships.�

�Although many people have close relationships with their pets, the owner-pet relationship is not a parent-child relationship. Furthermore, Plaintiffs have failed to cite any legal authority which would justify the extension of the right of familial association to relationships owners have with their animals. For these reasons, the loss of the family dog consequently does not deprive Plaintiffs' of their right to familial association.�

The court also rejected the argument that there was intentional infliction of emotional distress. Since Officer Dunn had a right to protect himself from the charging pit bull, the action was not done with the intention of causing emotional distress.

Summary judgment was granted to the defendants.

Conclusion

Holding one�s seriously injured pet while waiting at least 40 minutes for an animal control van to arrive is not something most dog owners even want to contemplate. Our hearts go out to Henry.

The court�s ruling is not unexpected, however, nor is its reasoning unsupported by general legal concepts. Courts are going to give the benefit of the doubt to the police. I would like a pit pull. I think they are beautiful dogs, but they come with this kind of risk. Be sure to think about it before getting one.

The Dogs of Marco Polo

Lest we accept the narrative of Marco Polo�s travels too readily, perhaps it is best to begin near the end of his journey with a description of the Island of Angamanain (one of the Andaman Islands south of Burma, west of Malaysia):

�Angamanain is a very large Island. The people are without a king and are Idolaters, and no better than wild beasts. And I assure you all the men of this Island of Angamanain have heads like dogs, and teeth and eyes likewise; in fact, in the face they are all just like big mastiff dogs! They have a quantity of spices; but they are a most cruel generation, and eat everybody that they can catch, if not of their own race. They live on flesh and rice and milk, and have fruits different from any of ours.�

The first plate here is taken from Il Milione, being a record of Marco Polo�s travels as transcribed by a cellmate in Genoa and published about 1300.

It may be, as John Masefield suggested, that certain descriptions of places on the return journey across the Indian Ocean were �tales of pilots, and that his fleet put boldly out to avoid the coast pirates.� In all fairness, a series of medieval travelers to the east felt obliged to describe dog-headed or dog-faced people they generally heard about, rather than saw. Friar Odoric, visiting eastern China, heard references to dog-men and wolf-men, but describes going to the island of Nicoveran (Nicobar Islands, south of the Andaman Islands), where he saw men and women with faces like dogs. (Yule, vol. I, 1866) A fourteenth century explorer, Ibn Batuta, perhaps in Malaysia, saw men with mouths like dogs, but not the women, who were extremely beautiful.

Henry Yule looked for a rational explanation for these dog-head stories, suggesting in a note to the account of Ibn Batuta: �I take the dog�s muzzle to be only a strong way of describing the protruding lips and coarse features of one common type of Indo-Chinese face.� These accounts are perhaps better understood as fitting within a long mythology about dog-men (cynanthropics) and dog-headed men (cynocephalics) going back at least to Greek sources. As David Gordon White summarizes:

�What changes is the locus of these exotic creatures�. They are always located far away, beyond neighbors that are close enough to be known as enemies or allies, often over the last known mountain range or body of water. They always belong to another land, live under another sky, live according to other statutes (Dog-Men often cohabit and couple with gynecocratic Amazons), and speak (or bark) other tongues.�

The second plate show�s a depiction of dog-faced men from Yule�s notes on Marco Polo (citing the source only as �from a manuscript�).

The Porcupine Hunters

When visiting Keshem, a town now in Afghanistan, Polo described porcupines that were hunted with dogs, but were able to huddle close, or roll themselves up, when attacked, and shoot off their quills. Yule, in a note to Polo�s description of porcupines, finds the belief that porcupines could shoot their quills goes back to antiquity and can be found in Pliny and Aelian. Yule acknowledges, however, that porcupines will huddle and coil themselves, �for the porcupine always tries to shield its head.�

The plate shows porcupine hunting as imagined in Il Milione.

Tartars Use Dogs in Bird Hunts

Although saying that the Tartars had the best dogs in the world, Polo also says that they ate dogs (something that Polo deems worthy to note regarding various peoples he encountered or heard about). Yule, citing the accounts of other travelers than Polo, describes the Tartars using dogs to hunt ducks, geese, and swans. During their invasion of Europe in 1242, some believed the Tartars, or at least some of their followers, were dog-headed and ate human flesh.

Kublai Khan�s Great Hunts

The central figure in Polo's narrative is Kublai Khan. The emperor had two men, brothers, who kept his hounds. Their functions during a hunt are described by Polo as follows:

�The Emperor hath two Barons who are own brothers, one called Baian and the other Mingan ; and these two are styled Chimtchi (or Cunichi) which is as much as to say, �The Keepers of the Mastiff Dogs.� Each of these brothers hath 10,000 men under his orders; each body of 10,000 being dressed alike, the one in red and the other in blue, and whenever they accompany the Lord to the chase, they wear this livery, in order to be recognized. Out of each body of 10,000 there are 2000 men who are each in charge of one or more great mastiffs, so that the whole number of these is very large. And when the Prince goes a-hunting, one of those Barons, with his 10,000 men and something like 5000 dogs, goes towards the right, whilst the other goes towards the left with his party in like manner. They move along, all abreast of one another, so that the whole line extends over a full day's journey, and no animal can escape them. Truly it is a glorious sight to see the working of the dogs and the huntsmen on such an occasion! And as the Lord rides a-fowling across the plains, you will see these big hounds coming tearing up, one pack after a bear, another pack after a stag, or some other beast, as it may hap, and running the game down now on this side and now on that, so that it is really a most delightful sport and spectacle.�

Although the numbers seem exaggerated, Allsen (2006, p. 97) notes the indigenous sources describe massive hunts in various parts of Asia.

The brothers, whose responsibilities did not end with the hunt, were also required to provide a thousand head of game daily to the court (not counting quails).

Polo is not the only early traveler to describe these massive hunts. Friar Odoric, visiting one of the successors of Kublai decades after Polo in the 1320s, says the following:

�When the Great Khan goes a hunting �tis thus ordered. At some twenty days� journey from Cambalech, there is a fine forest of eight days� journey in compass; and in it are such multitudes and varieties of animals as are truly wonderful. All around this forest there be keepers posted on account of the Khan, to take diligent charge thereof; and every third or fourth year he goeth with his people to this forest. On such occasions they first surround the whole forest with beaters, and let slip the dogs and the hawks trained to this sport, and then gradually closing in upon the game, they drive it to a certain fine open spot that there is in the middle of the wood. Here there becomes massed together an extraordinary multitude of wild beasts, such as lions [actually tigers, as noted by Collier], wild oxen, bears, stags, and a great variety of others, and all in a state of the greatest alarm. for there Is such a prodigious noise and uproar raised by the birds and the dogs that have been let slip into the wood, that a person cannot hear what his neighbor says; and all the [unfortunate] wild beasts quiver with terror at the disturbance. And when they have all been driven together into that open glade, the Great Khan comes up on three elephants and shoots his arrows at the game. As soon as he has shot, the whole of his retinue do likewise. And when all have shot their arrows (each man�s arrows having a token by which they may be discerned), then the Great Emperor causeth to be called out �Syo!� which is to say as it were Quarter! to the beasts (to wit) that have been driven from the wood. Then [the huntsmen sound the recall, and call in the dogs and hawks from the prey] the animals which have escaped with their life are allowed to go back into the forest, and all the barons come forward to view the game that has been killed and to recover the arrows that they had shot (which they can well do by the marks on them); and every one has what his arrow has struck.�

The scroll by Liu Guandao, painted about 1280, shows a hunting party including Kublai Khan in a white robe. A hunter in the upper left takes aim at a bird beyond the frame, while a sighthound looks up, probably at the same bird. Note that one of the hunting party has a cheetah mounted behind him. The plate below, from a manuscript in the Bodleian Library at Oxford (MS 264,240 verso), illustrating a French manuscript, Li Livres du Graunt Caam, shows Kublai Khan hunting. The large number of dogs and the diverse kinds of prey follow the intent of Marco Polo's account. (Double click on images to enlarge.)

Something similar to the medieval English forest laws apparently applied when the khan hunted:

�There is another thing I should mention; to wit, that for 20 days' journey round the spot nobody is allowed, be he who he may, to keep hawks or hounds, though anywhere else whosoever list may keep them. And furthermore throughout all the Emperor's territories, nobody however audacious dares to hunt any of these four animals, to wit, hare, stag, buck, and roe, from the month of March to the month of October. Anybody who should do so would rue it bitterly. But those people are so obedient to their Lord's commands, that even if a man were to find one of those animals asleep by the roadside he would not touch it for the world! And thus the game multiplies at such a rate that the whole country swarms with it, and the Emperor gets as much as he could desire.�

Polo says, however, that anyone can hunt in those areas from November to February, when the king isn�t hunting. Presumably that wasn�t the most comfortable time of year.

Yule, in a note, says that Bajazet (Tamurlane), a century after Kublai, had 7,000 falconers, and 6,000 dog-keepers, so Europeans became familiar with accounts of large numbers of hunting dogs in the east.

There is also a description of entertainments of the Great Khan, which included Chinese jugglers who could make animals climb up a rope and disappear. The animals apparently included dogs, hogs, panthers, lions, and tigers.

Kler (1941) records that Mongols used dogs in hare hunting. As in many cultures, dogs were used to dispose of those not worthy of burial. Polo recounts Kublai Khan having the body of a traitor �dug up and cast into the street for the dogs to tear.�

Guarding Travelers

In his description of the province of Cuiju (commonly Guizhou or Kweichow in anglicizing), Polo states:

�But you see they have in this province a large breed of dogs, so fierce and bold that two of them together will attack a lion. So every man who goes a journey takes with him a couple of those dogs, and when a lion appears they have at him with the greatest boldness, and the lion turns on them, but can't touch them for they are very deft at eschewing his blows. So they follow him, perpetually giving tongue, and watching their chance to give him a bite in the rump or in the thigh, or wherever they may. The lion makes no reprisal except now and then to turn fiercely on them, and then indeed were he to catch the dogs it would be all over with them, but they take good care that he shall not. So, to escape the dogs' din, the lion makes off, and gets into the wood, where mayhap he stands at bay against a tree to have his rear protected from their annoyance. And when the travelers see the lion in this plight they take to their bows, for they are capital archers, and shoot their arrows at him till he falls dead. And 'tis thus that travelers in those parts do deliver themselves from those lions.�

Yule notes a report from his own century of caravans of Chinese travelers being accompanied by large dogs along the Mekong River, which was presumably for such protection.

Sled Dogs in Siberia

In describing the difficult country of the northern steppes of Siberia, Polo mentions the �immense bears entirely white, and more than 20 palms in length.� One area impassable by horses has post-houses �for the lodgment of couriers.� The post-houses have dogs:

�At each of these post-houses they keep some 40 dogs of great size, in fact not much smaller than donkeys, and these dogs draw the couriers over the day's journey from post-house to post-house, and I will tell you how. You see the ice and mire are so prevalent, that over this tract, which lies for those 13 days' journey in a great valley between two mountains, no horses (as I told you) can travel, nor can any wheeled carriage either. Wherefore they make sledges, which are carriages without wheels, and made so that they can run over the ice, and also over mire and mud without sinking too deep in it. Of these sledges indeed there are many in our own country, for 'tis just such that are used in winter for carrying hay and straw when there have been heavy rains and the country is deep in mire. On such a sledge then they lay a bear-skin on which the courier sits, and the sledge is drawn by six of those big dogs that I spoke of. The dogs have no driver, but go straight for the next post-house, drawing the sledge famously over ice and mire. The keeper of the post-house however also gets on a sledge drawn by dogs, and guides the party by the best and shortest way. And when they arrive at the next station they find a new relay of dogs and sledges ready to take them on, whilst the old relay turns back; and thus they accomplish the whole journey across that region, always drawn by dogs.�

Yule notes that in the 19th century sled dogs were not used as far south as Polo describes, but that Ibn Batuta, a 14th century traveler, confirms Polo�s account. The Chinese knew of dog sleds, as a Chinese poem contains the line: �Over the thick snow in a dog-cart.� Yule cites dog-sled experts as saying that Polo and Ibn Batuta and other early travelers overstated the size of the dogs and understated the number that pulled a sled. The plate is Yule�s depiction of a Siberian dog sled.

Large Dogs of Tibet

Polo describes the people of Tibet having �great numbers of large and fine dogs, which are of great service in catching the musk-beasts, and so they procure great abundance of musk.� In another chapter, Polo adds:

�They have mastiff dogs as big as donkeys, which are capital at seizing wild beasts �and in particular the wild oxen which are called Beyamini, very great and fierce animals. They have also sundry other kinds of sporting dogs, and excellent lanner falcons�.�

Yule cites other travelers remarking on the size of the Tibetan mastiffs, �as large as Newfoundlands.� Yule refers to a priest�s account (Annales de la Propagation de la Foi, vol. 37) of a Tibetan mastiff beating off the attack of a leopard until the leopard split the dog�s skull open.

The depiction of the Tibetan mastiff here is taken from the 1859 work by John Henry Walsh, who wrote under the name Stonehenge, The Dog in Health and Disease.

Conclusion

John Masefield wrote: �The wonder of Marco Polo is this�that he created Asia for the European mind.� Despite such high praise, arguments have been made that Polo did not go to China, that he got somewhere close enough to pick up the accounts of travelers who had gone further, then spun what he remembered into a story while in a Genoese prison to entertain his cellmate, Rustichello da Pisa (Wood, 1996). An analysis of the dog references in translations of Polo�s account will not resolve such arguments. Nevertheless, Polo�s eye for detail provides valuable data, confirmed by travelers coming the century after, regarding how and where dogs were used in Asia. Much of the data seems so specific, and perhaps unimportant�such as the references to groups that eat dogs�that it would seem that someone taking a narrative from travelers at an intermediary station, say in Persia or India, would probably not bother. Nevertheless, I leave this debate to those qualified to participate in it.

Sources:

1. 1. Allsen, T.T. (2006). The Royal Hunt in Eurasian History. University of Pennsylvania Press, Philadelphia.
2. Collier, V.W.F. (1921). Dogs of China and Japan in Nature and Art. Frederick A. Stokes Co., New York.
3. Kler, J. (1941). Hunting Customs of the Ordos Mongols. Primitive Man, 14(3), 38-48.
4. Livres des Merveilles du Monde (Books of the Marvels of the World), sometimes called Il Milione, recorded by Rustichello da Pisa from stories told by Marco Polo, published c. 1300.
5. Masefield, J. (1907). Introduction. The Travels of Marco Polo the Venetian (1908). J.M. Dent & Sons, London; E.P. Dutton & Co., New York.
6. Stonehenge (John Henry Walsh) (1859). The Dog in Health and Disease.
7. White, D.G. (1991). Myths of the Dog-Men. University of Chicago Press, Chicago and London.
8. Wood, F. (1996). Did Marco Polo Go to China? Westview Press, Boulder, Colorado.
9. Yule, H. (1866) (editor and translator). Cathay and the Way Thither; Being a Collection of Medieval Notices of China, vols. I and II. Hakluyt Society, London.
10. Yule, H. (1871). The Book of Ser Marco Polo, the Venetian, vols. I and II. John Murray London. (In a note to Polo�s account of the dog-headed men of the Andaman Islands, Yule recognizes the widespread occurrence of dog-men stories, saying that they are at least as old as Ctesias. He notes that the Cubans described the Caribs to Columbus as man-eaters with dogs� muzzles; the Danes spoke of the Cynocephali of Finland; Friar Jordanus also heard of dog-headed islanders in the east, Pere Barbe related that Nicobar people considered themselves of canine descent, but on the female side; Portuguese sailors heard that Peguans (Burmese) sprang from a dog and a Chinese woman; Coromandel Brahmans spoke of man-eaters on the Island of Andaman).

Thanks to Eric Krieger and Richard Hawkins for comments and corrections. I had speculated that the dog in the Guandao illustration was looking at the emperor but Richard notes this would probably be an affront. Rather, it is much more likely looking at the potential game beyond our view in the sky above.