Colonel Johnny (my hearing dog while I practice virtually).

Today’s blog entry explores the following situation. A defendant was charged with multiple counts of aggravated criminal sexual abuse. The victim, R.L., of that abuse suffered posttraumatic stress disorder (PTSD), as a result. She testified at trial with a service dog. The defendant gets convicted and appeals saying that the trial court erred violated his rights by allowing R.L. to testify with her dog under the ADA. Case is People of the State of Illinois v. Tapley18067193203205, decided by the Illinois Court of Appeals for the second district on December 18, 2020. As usual, the blog entry is divided into categories and they are: additional facts; court’s reasoning affirming the use of a service dog (ADA); court’s reasoning affirming the use of a service dog (a fair trial/confrontation clause); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Additional Facts

 

In addition to the facts noted above, additional relevant facts include:

 

  1. On November 28, 2017, Illinois filed a motion in limine to allow R.L. to testify in the presence of her facility dog. Illinois alleged that R.L. suffered from PTSD as a result of defendant’s abuse and that she had a facility dog that accompanied her everywhere. Illinois alleged that she had previously suffered from PTSD episodes affecting her ability to go to school and communicate effectively but that the use of the facility dog has enabled her to attend school again. Illinois alleged that it had reason to believe that she might suffer a PTSD episode while testifying that would prevent her from reasonably communicating with the jury. Illinois further alleged the use of the facility dog and/or closed-circuit television would help ensure that she would not have a PTSD episode during the trial and would limit any further emotional distress to her.
  2. The term facility dog appears in section 106B-10 of the Code of Civil Procedure of 1963 for the state of Illinois, 725 ILCS 5/106B-1018168194204206, while the Code of Federal Regulations implementing the ADA, 28 C.F.R. §35.104, refers to a service animal, specifically a dog. The trial court found that her dog qualified as a service dog under the ADA.
  3. At a hearing on March 15, 2018 defense counsel stated that he learned that Illinois was planning to have R.L. testify with the dog present under the ADA. In response, the trial court stated, “there are very few things that can be done from the court’s perspective pertaining to that. What I mean by that is if in fact there is a disability, you can’t even ask what the disability is. The ADA does allow a service dog, and I think that’s what you’re getting to. She has made that request to court administration.”
  4. At the beginning of the April 5, 2018 motion in limine hearing the trial court stated that if it found out that it was an actual service dog, not a comfort dog, the court was going to have to make a reasonable accommodation. The trial court administrator and disability coordinator testified at that hearing that his responsibilities included monitoring access to the courthouse for people with disabilities. Further, that R.L.’s mother had contacted him about three months prior requesting that a service animal be present for her daughter’s testimony.
  5. According to the Illinois Atty. Gen.’s Manual for Court Disability Coordinators, the trial court administrator/disability coordinator is permitted to ask only two questions, those being whether the animal was required for a disability and what work or tasks it performs for the individual. Those questions were answered in the affirmative because the dog assisted in coping with a mental illness. In court, the trial court administrator/disability coordinator admitted that in situations where it was not apparent what the nexus was between the disability and the service animal, the Illinois Atty. Gen. Manual allowed him to ask what the functional limitation was but that he did not do so because the nexus between the dog and the disability was readily apparent to him.
  6. At a hearing on August 22, 2018, the trial court stated, “I reviewed the matters and received the information from our coordinator, and the court will allow a service dog to be present.” It stated that the dog should be brought in on August 24 to determine a reasonable accommodation. In response to R.L.’s mother request that the defendant not be present when the dog is brought in for those purposes, the trial court responded that it just needed the dog to come in with someone who could control the dog. R.L.’s mother said that the dog and R.L. were a team and had not been separated since becoming a team and that only R.L. could legally take the dog out in public. After some back and forth, the court winds up concluding that R.L. has a disability covered by the ADA and that the dog is a service dog.
  7. R.L. and the dog were present in the courtroom on August 24, 2019. The trial court stated that the gate on the witness stand that would be closed when she testified so that the jury would not be able to see the dog when it sat next to her. The trial court stated that the dog should not go on her lap. In response to that, R.L. stated that getting on her lap was one of the dog’s commands when she was anxious. She stated that the dog was likely to go up on her lap at least once even though she was not going to tell her to do that. Instead, that was one of the commands that she has and that the dog was trained to do.
  8. The trial court stated that it understood but that they were going to do the best they could. It stated that she could be seated with the dog for a few minutes to relax before the jury was brought in and before questioning started. It also stated that when she completed her testimony, the jury would leave the courtroom before she and the dog got up. The record indicates that the dog did sit on her lap one time while they were discussing the issue. Illinois described the dog as a medium-sized dog and stated that it did not think they could avoid the jury noticing the dog. Illinois also stated that it did not think that there was any way to get around the dog getting on her lap if that was part of the dog’s work in assisting her with her disability. The trial court repeated that it understood and said they were going to try to minimize it as much as possible.
  9. Testimony in the defendant’s jury trial began on September 18, 2018. Defense counsel did not object to the trial court’s jury instruction pertaining to the service dog, which stated in part: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. And the focus of your attention should be on the testimony of the witness. The presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  10. During cross-examination, the following exchange occurred: “[defense attorney]: Judge, I would ask that the dog be placed on the-[the court]: if-if-if the dog could go down, that would be fine so that the dog doesn’t stand up and block your face. Okay? [The witness]: okay [the court]: you may proceed.”
  11. The jury found defendant guilty of counts I through III and not guilty of Count IV. On October 9, 2018, defendant filed a motion for new trial arguing among other things that allowing the dog to be present at trial was prejudicial because it evoked sympathy and pity for R.L. and misled the jury to believe that she suffered from a disability he caused. The trial court denied that motion.
  12. During the sentencing hearing, testimony occurred noting that it took R.L. 18 months to obtain a dog because the dog’s training had to be tailored to R.L. R.L. received the dog in 2017 and it helped her function in society by alleviating the symptoms of her PTSD. For example, if she started disassociating while walking down the street, the dog was trained to detect that and to take action to redirect her. The costs of the dog and its care were considered medical expenses and her family had been compensated for the majority of the expenses through the crime victim compensation fund.
  13. The defendant appealed claiming that: 1) there was no showing that the dog was required under the ADA; 2) the ruling denied him a fair trial and impacted his confrontation rights; and 3) allowing the complaining witness to testify with the dog fundamentally altered the nature of the trial

 

II

Court’s Reasoning Affirming the Use of the Service Dog (ADA)

 

  1. The issue of the witness using a service dog under the ADA appears to be one of first impression in Illinois and maybe anywhere as the defendant did not cite, nor did the court’s research reveal, a case from another jurisdiction specifically addressing the issue.
  2. 42 U.S.C. §1213218269195205207, title II of the ADA, prohibit a public entity from discriminating against qualified individuals with disabilities.
  3. PTSD is listed as an impairment that substantially limits brain function in 28 C.F.R. §35.10818370196206208(d)(2)(iii)(K).
  4. As readers of this blog know, a service animal is any dog individually trained to do work or perform tasks for the benefit of an individual with a disability, including physical, sensory, psychiatric, intellectual, or other mental disability. Examples of work or tasks performed by service animals include helping persons with psychiatric and neurological disability by preventing or interrupting impulsive or destructive behaviors. 28 C.F.R. §35.10418471197207209.
  5. A public entity cannot ask about the nature or extent of a person’s disability, but they can make two inquiries to determine whether an animal qualifies as a service animal. In particular, they can ask if the animal was required because of a disability and what work or tasks animal has been trained to perform. A public entity cannot require documentation, such as proof that the animal has been certified, trained, or license as a service animal. The two questions get asked when it is not readily apparent that the animal is trained to do work or perform tasks when individual with a disability. 28 C.F.R. §35.13618572198208210(f).
  6. Allowing R.L. to testify with a service dog was within the trial court’s discretion under Illinois Rules of Evidence 611. Illinois Rules of Evidence 611 allows for the court to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: 1) make the interrogation and presentation effective for the ascertainment of the truth; 2) avoid needless consumption of time; and 3) protect witnesses from harassment or undue embarrassment. An abuse of discretion occurs only where the court’s ruling is fanciful, arbitrary, or unreasonable, which is not the case here.
  7. One of the purposes of the ADA is to prohibit a public entity from discriminating against a person with a disability because of his or her disability. So, the focus needs to be on whether the discrimination has occurred and not whether the individual meets the definition of a disability. In most cases, the question of whether an individual meets the definition of disability does not demand extensive analysis. 28 C.F.R. §35.10118673199209211(b)
  8. The cases cited by the defendant simply don’t wash because they concerned the situation where an individual with a disability brought suit against an entity for allegedly violating the right to have their service animals present. Whereas here, R.L. was allowed to use her service dog as requested.
  9. The ADA does not provide protection for individuals without disabilities.

 

III

Court’s Reasoning Affirming the Use of the Service Dog (Fair Trial/Confrontation Clause).

 

  1. If it is not readily apparent that a service animal is acting as a service animal, then those two inquiries can be asked.
  2. After reviewing the trial court administrator/disability coordinator’s written decision, the trial court was satisfied that there was a disability covered by the ADA and that the dog was a service dog.
  3. Defendant was informed that R.L. had requested the use of a dog for a disability and that the trial court granted the request.
  4. It doesn’t matter that there was no showing that the handler of the service dog had a disability because a public entity is prohibited from asking about the nature or extent of a person’s disability and the defendant also would not be entitled to that information.
  5. Ample evidence in the record exists that R.L. claimed to have PTSD. In fact, defense counsel admitted as much in a motion they filed.
  6. Defendant’s argument that there was no evidence that the dog was a service dog does not apply for several reasons: 1) the final regulations state that a public entity may ask only the two questions to determine whether an animal qualifies as a service animal; and 2) a public entity cannot require documentation, such as proof that the animal has been certified, trained or licensed as a service animal. So if the trial court was not allowed to require proof that the dog was trained, it follows that the defendant was likewise not entitled to such proof.
  7. At the sentencing hearing, at which the witnesses were subject to cross-examination, there was testimony that the dog had been prescribed by her pediatrician, it took 18 months to obtain the dog because it had to be trained for her needs, and that the family had been compensated for the majority of the expenses through the crime victim compensation fund because the cost of the dog and its care were considered medical expenses.
  8. It was adequately conveyed to the defendant that getting on R.L.’s lap was one of the commands that the dog was trained to do when R.L. was anxious. That very point was reiterated by Illinois as being part of the dog’s work in assisting her with her disability.
  9. Defendant had a full trial in front of a jury and has not cited case law or elaborated and how the dog altered the nature of the trial. Accordingly, that issue is forfeited for review.
  10. All of the courts examining a challenge to the use of a comfort dog in a courtroom have concluded that the dog’s presence is not inherently prejudicial.
  11. In a case out of Washington, that court said that whatever subconscious bias the jury may have by seeing the dog was cured by the trial court’s limiting instruction cautioning the jury not to make any assumptions or draw any conclusion based upon the presence of the dog. Similarly, in a case out of New York the court noted that there was no proof that sympathy was significantly greater than the normal human response to a child’s testimony about his or her sexual abuse at the hands of an adult. There also, the court instructed the jury not to allow sympathy to enter into its considerations, especially with respect to an outside factor like a facility dog.
  12. R.L. allegedly suffered from the PTSD in the first place because of defendant’s actions.
  13. The Supreme Court of Illinois Policy on Access for Persons with Disabilities states that the court will honor the choice of the individual, unless it demonstrate that another equally effective accommodation is available, or that the requested accommodation would result in a fundamental alteration of court activity or undue financial and administrative burdens.
  14. The trial court had a gate installed on the witness box to obstruct the jury’s view of the dog and held a separate hearing with the dog present so that the party could view how the dog would be seated next to R.L. during the trial. Illinois had disclosed that the dog would probably get on her lap while she testified because it was one of the dog’s commands and the trial court stated that should be minimized as much as possible. The trial court further stated that R.L. would be seated with the dog before the jury was brought in and that, after her testimony, the jury would leave the courtroom before she and the dog got up.
  15. Before she testified, the trial court instructed the jury in detail regarding the dog, stating: “ladies and gentlemen of the jury, I want to instruct you at this time that the witness has a service dog with her while she testifies. You are not to draw any inference in favor or against either side because of the dog’s presence. The focus of your attention should be on the testimony of the witness. Presence of the service dog in the courtroom shall not be considered in any way in the jury’s deliberations or verdicts.”
  16. A jury is presumed to follow a trial court’s jury instructions. Accordingly, for that and the other reasons noted in this blog entry the trial court adequately compensated for any potential sympathy generated by the dog’s presence so that the defendant’s right to a fair trial was not violated.
  17. While it is true that the sixth amendment give criminal defendants the right to be confronted with the witnesses against him, there was no issue of the right to confrontation here. She testified in clear view of the defendant and was subject to an extensive cross-examination by defense counsel. The dog got on her lap once, blocking her face, but as soon it defense counsel asked that the dog be placed on the ground, the trial court told her to do so and she immediately complied. And counsel with an able to resume it cross-examination thereafter.

 

IV

Thoughts/Takeaways

 

  1. You can expect to see other cases like this as time goes on. The way the trial court handled the situation will undoubtedly serve as a model for how other courts should deal with the situation where a witness claims to have a service dog.
  2. As we have discussed previously, here18774200210212, the title II and title III regulations do not limit an entity to two questions when it comes to trying to figure out whether the animal is a service dog. Rather, they are limited to two inquiries. Inquiries is much broader than two questions. True, the DOJ frequently asked questions document refers to only two questions. However, the regulation refers to two inquiries. Under Kisor v. Wilkie, which we discussed here18875201211213, regulations are going to trump any guidances. That said, any additional questions focusing on the two inquiries would have to be very narrowly focused for them to be permissible.
  3. Lots of confusion with terminology in this case. For example, the case talks about comfort dogs, assistance animals, facility dogs, and service animals. They all mean different things, the terms come from a variety of different places, and the terms are not necessarily consistent with how the ADA deals with service animals. Only a service animal gets protection under title II of the ADA. Also, the title II term is “reasonable modification,” though it means the same thing as title I’s “reasonable accommodation.”
  4. There was no debate in this case whether R.L. was qualified as she obviously met the essential eligibility requirements of being able to testify in court.
  5. In most cases, whether a person has a disability does not demand extensive analysis.
  6. The ADA does not provide protection for individuals that do not have disabilities.
  7. The Supreme Court of Illinois Policy on Access for Persons with Disabilities stating that the court will honor the choice of the individual unless the court demonstrates another equally effective accommodation is available or that the requested accommodation will result in a fundamental alteration of court activity or in undue financial or administrative burden is an interesting statement. That statement goes beyond what title II of the ADA and its final implementing regulations require. It is an accurate statement of what a title II entity would have to do with respect to their effective communication obligations, but effective communication is not what was involved here, not really anyway. There is absolutely no reason why a State can’t go further than what title II requires because title II just sets a floor.
  8. A limiting instruction whenever a person testifies with a service animal is an excellent idea. The way the trial court and its trial court administrator/disability coordinator went about the whole process was first rate.
  9. Another thing that the trial court did nicely is separating out the role of the administrator from the judge with respect to granting the accommodations. The two roles are very separate, though as we saw here, the trial court administrator/disability coordinator and the judge do wind up working together. I have seen situations where everything is sent to the judge and the trial court administrator/disability coordinator is eliminated with the theory being that the judge is then protected by way of judicial immunity. However, deciding on accommodations is not a judicial act.
  10. What happens if the court had messed this whole accommodation process up? Could they have been sued for disability discrimination in their official capacity? For that answer, take a look at this case we discussed previously18976202212214 in our blog.
  11. Whether it is readily apparent than a dog is a service animal can be a subjective question. In this case, it was pretty obvious to the trial court administrator/disability coordinator that the animal was a service animal but not everybody would see it that way necessarily. If they don’t, they can make those two inquiries. If it is blatantly obvious that the dog is a service animal, then those inquiries should not be made. In the case of a close call, if the two inquiries are made and any follow-up questions narrowly focused, hard to believe that liability would follow for asking follow-up questions narrowly focusing on the two inquiries even though it might be debatable as to whether the need for the service animal is readily apparent
  12. Certainly, that the service dog was necessary because of the conduct of the defendant factored into the equity of the situation. However, how a person comes to their disability is completely irrelevant to whether they have a disability that gets accommodated under the ADA.
  13. I can’t see how an appeal to the Illinois Supreme Court would go anywhere.
  14. In case you are wondering where the Second District of the Illinois Appellate Court is, it is the area immediately north and west of Cook County to the Illinois state line (Cook County is where Chicago is and some of its inner suburbs).

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