Emotional Support Animal or "Fake" Service Dog Attacks - You Could Be a Victim

There have been two reported attacks by dogs on airlines in the past year: In June 2017, a man was mauled by an emotional support dog on a Delta Air Lines flight in Atlanta. The severely disfigured victim claims he was attacked twice in the face and could not escape because he was in a window seat. And, in February 2018, a child was bitten on the face by an alleged service dog on a Southwest Airlines flight. 

I recall an appeal case before the LA Animal Services a few years ago, where a Pit Bull given to a homeless veteran under a City program within a few days attacked a Golden Retriever lying under the chair of its owner at an outdoor eating area of a restaurant. The retriever sustained over $14,000 in veterinary bills;a food server and the owner were also injured trying to protect her pet. The homeless man, who had no insurance, claimed he needed the Pit Bull for emotional support and wanted it back, blaming the retriever for "barking at his dog." 

Federal and state laws force landlords to accept Emotional Support Animals (ESA's) and make it impossible to identify "fake" service dogs they may believe to be high risk, even if they have a no-pet policy. They are restricted from making inquires about the alleged service dog's history, purpose or training. Airlines, restaurants and other businesses are also mandated to allow service dogs, even in violation of some public health laws. 

ESA's and "fake" service dogs can be any breed, size or age and do not have special training to perform a specific task. They often do not have even basic obedience training or socialization. Real service dogs and assistance dogs go through a selection and training process that assures they have a docile temperament and are trained to never act aggressively, even if attacked.   

California has a “first-bite” rule in regard to dogs, meaning the owner is automatically responsible for any harm caused by his/her dog, even if there is no prior incident. But, what if that dog is an Emotional Support Animal (ESA) or a "fake" service dog?  Does that rule of liability apply to them? Or, do all the legal protections and concessions for these animals negate or reduce liability for the dog owner? And, do landlords or business owners who had no choice in the animal being on their property still have the same legal responsibility?  

LA DOG-BITE LAW ATTORNEY TALKS ABOUT ESA'S AND SERVICE DOGS 

I asked Los Angeles Dog Bite Law attorney Ken Phillips if he had handled cases involving bites by emotional support dogs. He responded, "I have had a number of cases against the owners of 'fake' ESA dogs -- but in my entire career, I have never even heard of a case against a real service dog because, after all, they are well-trained to be good dogs under all kinds of bad conditions."  

"Dog bite law treats ESA dogs and service dogs like any other kind of dog," he said, "In other words, there is no special treatment for any kind of a dog unless it is a police or military dog that injures a person during a law enforcement activity consistent with the agency's guidelines."  

"Homeowners and renters insurance usually provide coverage for harm of all sorts inflicted by pets. However, dog owners have to ascertain whether their insurance has an exclusion for "any harm caused by an animal" or "any harm caused by a dog," an exclusion for the particular breed of dog (such as pit bull), or a limitation in the amount of coverage (such as a $25,000 limitation even if the policy is for $100,000 or more of coverage for other liabilities)."  

He added, "I always want to know whether the attacking dog is a 'fake' service dog or fake ESA, because "faking it" is a crime in itself and gives me leverage to get a case settled quicker and for a larger amount." 

Ken Phillips surmised, "The public, airlines, restaurants, and the federal government are getting fed up with fake service dogs and ridiculous emotional support animals. The federal government made it clear from the beginning that it did not recognize emotional support animals but contradicted itself when enacting laws for airlines. This led to terrible abuses and even savage maulings of passengers on planes." 

His webpage, "Fake Service Dogs" was written in August 2016 and the number of incidents has since increased; but, among those included at that time is this chilling post by Animals 24-7 editor, Merritt Clifton, entitled, "Service pit bull who attacked three people & dog is re-impounded": 

Yakima Animal Control and the Humane Society of Central Washington on May 14, 2014 re-impounded an alleged “service pit bull” who had mistakenly been returned to owner Kali Katzenberg after completing a 10-day quarantine, but before a hearing scheduled to determine whether the pit bull is legally a dangerous dog. 

The alleged “service pit bull” on May 1, 2014 rushed out of his home to attack a dog who was being walked on another street.Three people were reportedly bitten by the alleged “service pit bull” while trying to rescue the dog who was attacked. The person who was walking the dog who was attacked suffered a broken arm. 

Yakima Herald reporter Donald W. Meyers noted, “The incident came just two weeks after the city council approved an exemption for service and therapy dogs under a city ordinance that otherwise bans pit bulls.” 

"Fake service dogs disfigured at least six people and killed five from 2012 to 2016. Prior to 2012, there were no previous disfiguring or fatal attacks by service dogs on record," according to Dogbitelaw.com.  

EMOTIONAL SUPPORT ANIMALS (ESA's), ASSISTANCE DOGS AND SERVICE DOGS   

Because many definitions provided by usually reliable resources on the Internet are not accurate on this subject, I contacted a California attorney who interprets animal law codes for government agencies and law enforcement and is also an expert witness in this field. He agreed to provide me with information and definitions and discuss the matter in general, with the strict disclaimer that THE FOLLOWING IS NOT LEGAL ADVICE and anyone who needs specific information should immediately contact an attorney. 

ASSISTANCE DOGS AND SERVICE DOGS 

"Assistance dog" is an umbrella term that encompasses guide dogs for the sight impaired, signal dogs for hearing impaired and service dogs for all other forms of disability -- physical, psychological and emotional. Assistance dogs and service dogs are synonymous (the federal law uses the term “service” rather than “assistance”).  

Only dogs can be service animals, and they must be specifically trained to perform some task that helps a person overcome a disability. 

There are three areas of law that apply to these categories of animals: ADA, FHA/FEHA, and Air Carrier Access Act. ADA deals primarily with public accommodations but does also apply in some housing/employment situations. FHA/FEHA are the primary laws (federal and state) that apply to housing and workplaces.  

EMOTIONAL SUPPORT ANIMALS (ESA) 

Emotional support animals (ESA) are not service animals. Emotional support animals may be almost any species and are essentially untrained pets. The only distinction between an ESA and a pet is that the handler of the ESA derives some emotional benefit from the presence of the animal and has a psychological/emotional “need” (does not have to rise to the level of disability as defined by law) for the animal. 

It is a violation of federal law to ask to see ID or verification of service dog/assistance dog status, or to ask about the handler’s disability. Conversely, a landlord/housing authority CAN (but is not required to) ask for evidence of the need for the ESA. A letter from anyone authorized to make a “diagnosis” is sufficient. 

Overlap exists between the ADA and FHA regarding service dogs. Service animals have a right to go into public places. ESA's do not. ESA's are not trained. ESA's are allowed in housing and in some instances common areas of private (multi-unit housing) property, by right, but not in public places. 

For example, if I have an emotional condition for which I derive benefit from a pet, I can have it in my rental unit as a "reasonable accommodation" or at work under CA State Law (FEHA).  

"Reasonable accommodation" is a term also used in ADA. So, if my emotional condition rises to the level of disability, then the ADA would also protect my right to have the pet -- even in violation of a no-pets policy -- as an ESA. 

While the owner of an ESA has all the responsibilities of any dog/petowner, insurance (or a deposit) cannot be required of a tenant in order to have the dog/pet. 

LANDLORDS/TENANTS AND "REASONABLE ACCOMMODATION" 

A landlord cannot deny my aggressive pit bull or any other animal of concern in my rental unit in violation of landlord's "no pet" policy because it is a medical accommodation for my "emotional condition" -- that may not rise to the level of a disability. It does not have to rise to the level of "disability"--it just calms and sooths me. However, I have no right to take an ESA into a public accommodation. 

Whether it can be excluded from the common areas of the apartment building is a fact-specific taking determination. For example, the risk of harm the animal poses to others (“aggressive” dog, pig, goose, etc.) would probably have to be balanced with the level of need that I have for the animal. 

The key word is "reasonable” accommodation, and it pertains substantially to the nature of the location. There is a balancing act to be done, comparing the rights of the ‘disabled’ with the rights of others to use and enjoy the property.  

Also, persons with a disability (under ADA) or emotional/psychological condition (under FHA/FEHA) don’t get carte blanche to get anything they want (almost, but not quite). The nature of the accommodations that a business/landlord will be REQUIRED to make are limited to “reasonable” ones.  

WHAT IF AN ESA OR SERVICE DOG BITES OR ATTACKS?  

Under CA law, guide dogs that bite are allowed to do a “working” quarantine (not removed from the handler for the 10-day quarantine period).  

Signal dogs and service dogs do not have a statutory right to that but forcing an impound for 10-days may be viewed as a violation of CA PC 365.6, so each case should be evaluated on its own merits.  

My opinion is that when a service dog that has bitten and is subject to quarantine, and the handler lacks adequate facilities or is unwilling to abide by quarantine provisions (strict isolation and confinement of the dog in such a manner that it cannot contact any person or animal not previously exposed), then the burden is on the handler to show that (s)he truly has a medical condition in which the need for the animal outweighs the mandate for quarantine.  

If the handler refuses to disclose the nature/extent of the disability, then they cannot complain if the dog is impounded for (up to) a 10-day quarantine. 

WHAT CAN AN ATTACK VICTIM LEGALLY ASK ABOUT AN ESA OR SERVICE DOG?

The Emotional Support Animal (ESA) is essentially a pet. There is nothing special about the animal -- only the person. Once it is clearly established that it is an ESA, feel free to ask anything you want.  

The prohibition against asking about the medical condition of the handler applies to service dogs, and the persons who have a disability.  

If the handler describes the dog as an ESA, (s)he has just voluntarily disclosed the nature of his/her medical condition and to that extent waived confidentiality. I would not ask any further questions about the level of the emotional condition -- except a landlord/employer can ask to see documentation of the condition. 

Can police officers or EMT's ask questions about what "services/support" the dog provides, etc., without violating constitutional rights?   

There really aren’t any questions to ask about the task the animal does. By definition, all it does is exist. It is the emotional reaction of the handler that makes it an ESA.  

Asking questions about the task the dog is trained to perform is one of the two permissible questions for service dogs.  

So, where there is any doubt/confusion as to what category the dog falls into (most times the handler can’t accurately describe the legal label of the dog), it is permissible and helpful to ask, “What task is this dog trained to do to assist you with your disability?”  

HERE IS A LINK TO CA LAWS.   

CRACKING DOWN ON "FAKE" ESA's AND "FAKE" SERVICE DOGS 

After reporting an 86percent increase since 2016 in “animal incidents,”(which includes regarding ESA and alleged service dogs urinating, biting or showing acts of aggression) Delta Air Lines announced that starting March 2, 2018, customers are required to show proof of health or vaccinations for their animals 48 hours in advance. And, owners of emotional-support animals (ESA) will need to sign a statement confirming their animal can behave. (The new requirements do not apply to pets that stay in kennels during flights.) 

This is an important step, especially since it has become so easy to go online and buy vests or ID cards for "service animals" and to purchase medical documentation for as low as $175. 

And, as Dog Bite Law Attorney Ken Phillips reminded us, “faking it”in regard to a guide, signal or service dog is a misdemeanor under CA law PC 365.7. and punishableby imprisonment in the county jail not exceeding six months, by a fine not exceeding one thousand dollars ($1,000), or by both. 

(Phyllis M. Daugherty is a former City of LA employee and a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.