[nagdu] Madison man tussles with police over service dog

Mon Jun 15 15:51:39 UTC 2009

Continuation of an article posted a couple of weeks ago.  The writer
does a good job of laying out the facts and the law.

Craig

Madison man tussles with police over service dog

By SANDY CULLEN

608-252-6137

June 12, 2009

When Madison police pepper sprayed and Tasered Stephen Bottila last
month after he refused to leave a McDonald's restaurant with his service
dog, it was

just the latest skirmish in an ongoing battle.

Bottila, who has epilepsy and says he relies on his dog, Justice, to
alert him to possible seizures, said he was simply exercising his right
- protected

by federal and state laws - to be accompanied by the 12-year-old
shepherd mix.

Police say they were justified in using force on Bottila because he
refused to leave after finishing his food and fought with officers who
tried to physically

remove him.

Yet federal and state laws give people with disabilities wide latitude
to take their service dogs into places where animals normally aren't
allowed. And

the Madison Police Department has established protocols for dealing with
the issue - created specifically in response to past contacts with
Bottila - although

records show officers have dealt with complaints from businesses
inconsistently.

In at least four prior incidents involving city police and two with town
of Madison and Fitchburg police in the past two years, Bottila says was
prohibited

from being in restaurants, stores and other places allowed by law where
his service dog has been an issue. In at least two instances, city
police took

no action when employees called them about Bottila and his service dog,
police records show.

To Bottila, 37, it's a question of exercising his civil rights. "Without
civil rights, I have no life to protect," he said.

But Madison Police Capt. Victor Wahl said Bottila - who has filed a
federal lawsuit against the department and discrimination complaints
against local businesses

- has made a "hobby" of inciting confrontations over the issue and has
told officers he sees "it as an opportunity to make a living off of
lawsuits against

police."

Bottila, whose encounters with city police began when he was homeless,
"is not helping anyone's cause" with his approach, Wahl said. In its
response to

the federal lawsuit, which a judge has ordered to go to trial, the city
denies violating Bottila's rights.

'Repeated demands for proof'

Bottila, who takes his service dog into many businesses without
incident, denies setting out to create conflicts.

Under the Americans With Disabilities Act, businesses must allow people
with disabilities to bring their service animals into any areas
customers are normally

allowed. Employees may ask if an animal is a service animal and what
tasks it is trained to perform, but they cannot ask what a person's
disability is

nor require proof that the animal is a service animal. Wisconsin also
has similar laws.

But Bottila said business employees and police have repeatedly demanded
proof that he is disabled and that Justice is a service dog.

While some businesses have been slow to accommodate him, police have
acknowledged Bottila's rights under the ADA - although enforcement has
varied.

Last year, Town of Madison Police held a training on service animals
after two incidents involving Bottila and Justice at an Open Pantry at
2504 Rimrock

Road, said Chief Scott Gregory.

"Personally, I was lacking in my knowledge on service animals," Gregory
said.

Service animal image

The image many people have of a service animal is a dog on a short
halter assisting someone who is blind. But the law doesn't specify what
functions a service

dog must perform, nor require any identification, such as a special
leash or vest.

Bottila said Justice alerts him before he has a seizure by putting his
ears out to the side and giving Bottila a funny look. Bottila then wipes
a magnet

across a small device implanted under his skin, which produces
electrical signals to stimulate the vagus nerve and helps prevent
seizures.

If he has a seizure, which happens about twice a month, Justice protects
him by staying beside him and licks his face, Bottila said.

"The facts here suggest that this animal is indeed a service animal,"
said Alejandro Miyar, a spokesman for the U.S. Justice Department.
"Animals trained

as seizure alert animals are used by many persons with seizure disorders
and they perform an important function for the person with a disability.
As such,

the owner need not provide certification or proof of the animal's status
as a service animal."

Harassment complaint

In the May 26 incident, it was Bottila who first called 911 to complain
he was being harassed by a manager at the McDonald's at 2402 S. Park St.
over his

service dog. A minute later, the manager called 911 and said it was
apparent Bottila did not have a disability and would not leave, but that
Bottila was

not causing a disturbance or being violent.

According to a police report, the manager told the responding officer
that Bottila said Justice was a service animal, but the manager did not
know if that

was true. He also said other managers have told him Bottila comes into
the restaurant and tries to confront staff, and that he wanted Bottila
removed from

the premises and told not to return.

A complaint filed by Bottila with the city's Department of Civil Rights
over a 2007 incident at the same McDonald's is pending.

Officers eventually used pepper spray and a Taser on Bottila after he
resisted their efforts to physically remove him. He was taken to the
Dane County Jail,

while Justice was taken to the Dane County Humane Society for two days
until Bottila was released on a signature bond after being charged with
obstructing

police and misdemeanor bail jumping.

Linda Kilb, an attorney with the Disability Rights Education and Defense
Fund in Berkeley, Calif., said it appears that police not only aided
McDonald's

in violating Bottila's civil rights but that police also violated his
rights by treating Bottila differently than other customers.

"That's not an opinion that we agree with," Wahl said.

Legal bulletin

Last August, state Senate President Fred Risser, D-Madison, wrote to
Madison Police Chief Noble Wray on Bottila's behalf, asking how the
department distinguishes

between "someone who truly has and needs a service animal" and "someone
who just brings an animal into an establishment to cause trouble."

In his response, Wray said the department did not have a policy but had
issued a legal bulletin including the department's protocol in such
cases. The bulletin,

issued by Wahl in February 2008, states, "Generally, if a person states
that they have a disability and that their animal is a service animal,
they (and

the animal) have to be allowed into businesses open to the public."

It also states: "Officers should not assist businesses in removing
persons with service animals simply because of the animal (even if there
is no evidence

that the animal is actually a service animal)."

Wahl said officers are expected to know and follow that protocol, even
though it is not in the department's policy manual.

Even before the memo was issued, Madison police officers took no action
on two occasions when managers at another McDonald's at 4687 Verona Road
called

police to complain about Bottila's service animal. In one report,
Officer Sarah Stauffer said she contacted a manager by phone and
"explained that MPD

cannot take any action in this situation due to ADA regulations." She
also gave McDonald's a copy of the regulations.

Mike Mangin, vice president of Missoula Mac, which owns both the Park
Street and Verona Road McDonald's, declined comment, saying, "This is
ongoing litigation."

Provide proof

Wahl said if Bottila were being reasonable, he would provide proof that
Justice is a service animal, even though the law doesn't require it. But
Bottila

said when he has shown officers a letter he requested from LaVonne
LaFave of the city Parks Division stating that Justice is a service
animal, it was not

accepted as proof.

Madison police spokesman Joel DeSpain said if Bottila believes his
rights were violated or he has been a victim of police misconduct, he
could file a complaint

with the department in addition to a lawsuit.

"We have a lot of respect for people with disabilities and service
dogs," DeSpain said. "Certainly we want to uphold the rights of those
people and their

animals in general."

State Journal reporter Patricia Simms contributed to this report.

Return to story  

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contents Copyright

Craig Borne, Esq.

Manager, External Civil Rights Compliance Program 

National Highway Traffic Safety Administration 

Office of Civil Rights

1200 New Jersey Avenue, Southeast  

Room W43-321 

Washington, DC 20590

Office : (202) 493-0627

Fax: (202) 493-2990 

Email: craig.borne at dot.gov <mailto:craig.borne at dot.gov> 

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