“You have two completely legitimate public interests,” said Massey, of Birmingham firm Alexander Shunnarrah & Associates.
There’s “the public interest for people who need support animals to have the support animals. But the other 99 percent of paying customers on that plane have a legitimate public interest as well to know that if they are seated next to a large unrestrained animal, that they can at least feel safe that that animal is trained.”
Jackson, of Daphne Ala., was attacked as he took a window seat next to another traveler, identified in a police report as Ronald Kevin Mundy Jr. The report said Mundy was a military service member with the Marine Corps who "advised that the dog was issued to him for support."
According to Massey, Mundy was in the middle seat with the dog in his lap as Jackson edged past them to the window seat. After Jackson was seated the dog lunged twice at his face, inflicting deep bite wounds, the lawyer said.
Jackson was taken by ambulance to a hospital and needed 28 stitches, and the flight was delayed. The dog was allowed to take a later flight with Mundy — but in a kennel in the cargo hold.
Efforts to reach Mundy, who wasn’t charged, have not been successful. Delta won’t comment on what documentation Mundy presented.
But in some ways, airlines’ hands are tied: The federal Air Carrier Access Act requires airlines to accommodate emotional support animals, which are lumped into the broader category of service animals.
Letter from a pro
Airlines are not allowed to require documentation showing a service or emotional support animal has been trained, according to the DOT. In the case of support animals, they are only allowed to require a letter from a licensed mental health professional asserting a need.
Websites like therapypet.org offer such a letter after a “chat” with one of their licensed therapists, with the pitch: “No More Unfair Airline Fees” and “Therapy Pet helps people get the proper documentation to make their pet an official Emotional Support Animal.”
The website says ESAs can “Help in Many Ways: Feel Better, Sleep Better, Feel More Confident, Better Overall Well Being, Feel More Comfortable, Increased Self Esteem.”
Massey said he believes airlines should still be able to require proof of training or a temperament test because the law says airlines must accept animals except when “the animal would pose a direct threat to the health or safety of others.”
Flying with a regular pet is typically expensive or difficult. Delta is among the airlines that charge $250 round trip for a pet to travel in the cabin, for example, and most carriers restrict the transport of pets as cargo.
Since 2003, the DOT’s definition for service dogs covered by the Air Carrier Access Act has included both those with specific purposes such as helping a blind person and emotional support animals. According to the DOT, “an animal used for emotional support need not have specific training for that function but must be trained to behave appropriately in a public setting.”
While psychiatric service animals are trained for tasks like sensing when the owner will have an anxiety attack and taking action to lessen the effect, an emotional support animal can be a dog or cat whose mere presence is comforting.
Emotional support animals, however, are not recognized under the Americans with Disabilities Act, which allows people to bring service dogs into public places like restaurants and stores.
Massey said there’s still room for airline measures to assure safety. “There are a lot of ingredients you could put in place to prevent attacks,” he said, including restricting where the dog and its owner sits or how big the animal is.
But according to the DOT airlines are not allowed to require that emotional support animals be transported in a carrier “unless there is a safety-related reason to do so.”
For a dog, it “can be very stressful to get on an airplane,” said Aga, the Alpharetta dog trainer. “They’re crammed in there and there’s a person right next to them … and then being defenseless being held in a lap.”
“It’s not an excuse but it’s a little bit of an explanation,” Aga said. To acclimate a dog to such conditions requires training, she said, “slowly inducing stressful situations, doing a systematic desensitization of being in close proximity.”
Airlines also cannot require that emotional support or service animals wear a muzzle “unless the carrier determines one is necessary to prevent a direct threat to the health or safety of others,” according to the DOT.
Brad Morris, of Psychiatric Service Dog Partners, a nonprofit that advocates for service dog users, sat on the DOT advisory committee last year. He said muzzles can be problematic because they “tend to stress animals” and dogs can get out of muzzles. “It gives this illusion of safety,” he said.
The DOT formed the committee as part of a process to determine “the appropriate definition of a service animal” and to establish “safeguards to reduce the likelihood that passengers” can use the designation to bypass fees and restrictions for regular pets.
Airlines advocated to eliminate emotional support animals from the Air Carrier Access Act, in part because of the operational issues they create for flight crews and gate agents. Delta in its comments to the agency said: “Due to recent attempts by customers to bring animals onboard flights with suspect service potential, there is a need for clear guidance” from the DOT on these topics.
The issue splits disability advocates. Some question lumping emotional support animals with service animals. Others aim to to protect the privacy and rights of disabled passengers to travel with emotional support animals.
“Where the struggle comes in is if you have one or two sensationalized reports, then is that enough for us to put what may be undue burdens in the face of people with disability who genuinely need accommodations?” Morris said.
A proposal from disability advocates on the DOT committee favored requiring that passengers with service animals answer questions and attest “that these statements are true and I am aware that I am committing fraud if I knowingly make false statements here in order to secure federally regulated disability accommodations.”
Some advocates, including Morris, said emotional support animals should travel in carriers, effectively limiting them to smaller animals.
But the exercise yielded no consensus, and the advisory committee on accessibility declined to make a recommendation on the issue in its final report.
Marlin Jackson and wife Azure Joiner-Jackson. Source: Alexander Shunnarah & Associates
What’s not allowed?
Delta’s website says it does not accept the following as trained service animals, emotional support animals, or pets in cabin animals, saying: “These animals pose safety and/or public health concerns.”
Non-household birds (farm poultry, waterfowl, game bird, & birds of prey)
Animals improperly cleaned and/or with a foul odor
Animals with tusk or hooves
Source: Delta Air Lines website