Judge dismisses lawsuit from Wisconsin man who claimed police violated his right to be accompanied by a service animal

From the Wisconsin State Journal:

A federal judge on August 10 dismissed a lawsuit claiming Madison police violated the rights of a man with epilepsy to be accompanied by a service animal.

U.S. District Judge Barbara Crabb ruled that Stephen Bottila (pictured) had not presented enough evidence to prove he qualified as disabled, or that his dog was a service animal, under the federal Americans with Disabilities Act.

Bottila, who represented himself in the lawsuit, said he would appeal.

“Without rights, I have no life,” Bottila said.

“I’m not sure the court got it right,” Linda Kilb, an attorney with the Disability Rights Education and Defense Fund in Berkeley, Calif., said in response to Crabb’s ruling.

Attorney Steven Zach, who represented the city, declined comment on the ruling.

Bottila had claimed officers violated his rights on Sept. 3, 2007, by prohibiting him from being in a State Street restaurant and city park with his German shepherd mix, Justice, which he identified as a service dog.

In May, Madison police used pepper spray and a Taser on Bottila after he refused to leave a McDonald’s restaurant where a manager wanted him to leave because of his dog.

Zach asked the judge for a directed verdict after Bottila presented his case before a jury.

Zach argued that expert testimony was required to prove Bottila has a disability that substantially impairs or limits a major life activity.

“That is absent in this case,” Zach said. “The only testimony that exists is (Bottila’s) own, non-expert testimony.”

Zach also argued Bottila failed to show that Justice is a service dog under the ADA, which requires an animal be “individually trained” to perform tasks for someone with a disability.

Bottila testified at length about his epilepsy, saying the seizures he suffers have significantly limited his employment options and prevent him from driving.

He also testified that over time Justice developed the ability to sense when he was about to have a seizure and to alert him. Bottila said he then activates a device implanted under his skin to help prevent a seizure.

Crabb said Justice has “an innate ability,” but “he has not been trained to recognize a seizure.”

Bottila argued that Justice has been trained by observing his seizures over several years.

Alejandro Miyar, a spokesman for the U.S. Justice Department, said in June that Bottila’s description of the dog suggests it is indeed a service animal. “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,” he said. “As such, the owner need not provide certification or proof of the animal’s status as a service animal.”

Bottila also presented a transcript of a 911 call by Sue Foster, manager of Einstein Bros. Bagels, in which she stated a man was a refusing to leave the State Street restaurant with a dog he claimed was a service animal.

He later testified that Officer Kipling Kellogg threatened to arrest him and send Justice to the pound if he didn’t leave the restaurant. Kellogg then refused to accept what proof Bottila could provide that he has a disability and that Justice qualifies as a service animal, Bottila said.

Bottila also presented a police report, in which Kellogg stated he thought Bottila, who was homeless at the time, was pulling a scam to take his dog into the restaurant.

Later the same day, Bottila testified, now-retired Officer Meredith York told him he could not have Justice in city-owned Peace Park.

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.