Surprise Surprise: Service Dogs in Training Are Covered by the ADA

I hope everyone is surviving their March madness pool, if you are participating in one. So far, I am doing okay in the pools I am in. Best of luck to everyone.

Today’s blog entry explores what role does the ADA play with respect to service animals in training. The case of the day is Mission Working Dogs v. Brookfield Properties Retail, Inc. a denial of summary judgment decided by the District Court of Maine on March 7, 2025, (Mission Working Dogs v. Brookfield Props. Retail, Inc., 2025 U.S. Dist. LEXIS 41134). As usual, blog entry is divided into categories, and they are: facts; court’s reasoning that injunctive relief claims can go forward; Mission Working Dogs and individual nondisabled plaintiffs have standing; court’s reasoning that Title III ADA claims and the Maine Human Rights Act claims are viable; court’s reasoning that certain defenses do not apply; false imprisonment claim survives; court’s discussion of the statutory penal damages under the Main Human Rights Act; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Mission Working Dogs is a nonprofit corporation with seven board members, one paid employee, and 53 active volunteers. It was founded in July 2022 to address the needs for service and therapy dog training in Maine. Its mission is to support the community by training service dogs for veterans and nonveterans with mental and physical disabilities so that they can live more independently. Plaintiff, Christina Gardner, is the founder and president. Prior to starting Mission Working Dogs, she was a dog trainer for approximately 10 years, training service animals, therapy dogs, and some pets. She has worked with service dog trainers in multiple states as well as with Walter Reed National Military Medical Center’s Warrior Canine Connections. Ms. Gardner is a also a person with a disability herself and has her own service dog. The volunteers with her organization are both people with and without disabilities.

Since 2018, the Maine Mall and its security contractor, Professional Security Consultant, Inc. has known that only two questions may be asked of individuals with service dogs pursuant to the ADA: 1) is this service animal required because of a disability?; And 2) what work or tasks has the animal been trained to perform. (This paragraph taken directly from the opinion, and as we will discuss in the thoughts/take away section, is not accurate).

Prior to May 7, 2022, Ms. Gardner visited the Maine Mall with her service dog multiple times. In March or April 2021, Ms. Gardner was at the Maine Mall with a disabled friend and both were accompanied by their service dog. A security guard came over to them while they were eating, and yelled at them because they had service dogs, both laying under the table at the time. The security guard told Ms. Gardner and her friend that no dogs were allowed in the Maine Mall. When they explained that their dogs were service animals, the security guard indicated that it didn’t matter because no dogs were allowed in the mall. Ms. Gardner told the security guard they were not leaving the mall. However, when the security guard departed, Ms. Gardner and her friend finished their meal and then left to avoid further confrontation.

Several months later, Ms. Gardner brought her service dog and a small group of individuals from her nonprofit back to the mall. The security guard detained them for 20 minutes and subjected them to a number of questions that Ms. Gardner perceived as rude and inappropriate about her health and her service dog. At no point during the interaction, were the ADA questions posed. The security guard told Ms. Gardner that if she wanted to be in the mall with her service dog, she would need to call Maine Mall security in advance to schedule a time when they could visit the mall to shop. Ms. Gardner stated they were legally allowed to be in the Maine Mall and that she was not obligated to make an appointment to shop because this was not a requirement imposed on the general public. Even after she asserted her rights, and explained the state of the law, including the two questions (taken from the opinion) the security guard continued to detain the individuals until the guard received an emergency radio call and left. During that time, Ms. Gardner was specifically threatened that she and the group would be arrested for trespassing upon the arrival of the law enforcement.  When the police did show up, they confirmed that the group would be arrested for trespassing unless they left. The group did eventually leave. Management of the mall also took positions that were clearly inappropriate considering the DOJ final implementing regulations.

The purpose of having the service dogs at the mall was to acclimate the dogs to the general public so they could go through different elements of public settings and therefore, practice tasks required for accessing public spaces.

Ms. Gardner along with another individual did go back to the Maine Mall with service dogs in training after the incident (just the two of them), and they were not asked to leave by security.

Mission Working Dogs training standards for service dogs meet international accreditation standards, and in order to graduate as a service dog, an animal must have at least 120 hours of training, perform more than 60 commands, pass a 14 part public access test, pass an access skill tests, and pass a restaurant test.

Plaintiff filed their complaint with the Maine Human Rights Commission alleging disability discrimination and retaliation and received a right to sue letter.

There are many more details that can be found in the opinion, but these are the critical facts for our purposes.

Also, the court throws out the retaliation claim because an employment dispute was not involved, and retaliation under Maine law strictly applies to the employment situation.

II

Mission Working Dogs Court’s Reasoning That Injunctive Relief Claims Can Go Forward

1. Title III of the ADA allows both private litigants and the Atty. Gen. to seek injunctive relief. However, only the Atty. Gen. can seek such relief solely on the basis of past harm.
2. Title III is not intended to provide redress to individuals for past discrimination unlikely to recur, and an injunction is intended to prevent future violations and not to punish past ones.
3. A plaintiff seeking injunctive relief premised upon an alleged past wrong has to demonstrate a real and immediate threat of repeated future harm in order to satisfy the injury in fact prong of the standing test.
4. A person with a disability need not engage in a futile gesture if such person has actual notice that a person organization covered by the ADA does not intend to comply with the provisions.
5. The existence of a private right of action under 42 U.S.C. §12188(a)(1) does not depend upon how many attempts a plaintiff has made to overcome a discriminatory barrier, but rather depends upon whether the barrier remains in place.
6. Viewing the record in the light most favorable to the nonmoving party, plaintiffs sufficiently pleaded a colorable threat of future harm and thereby demonstrated the possibility of redress under Title III of the ADA.
7. The mall does not find it objectionable when a few persons with disabilities appear with their service animals, but clearly draws the line when 10 disabled persons enter its premises at once and use it to train service animals. The mall’s response to the lawsuit gives no assurance that if as many as 10 people with disabilities came to the mall in the future simultaneously to use it in order to train their multiple service animals, the mall would not again instruct them to leave and called the police to oust them on pain of criminal charges for trespassing.
8. The court can reasonably infer that the remainder of the group have not returned to the mall because they feared the violations are ongoing and it would be futile to again seek, and potentially be denied, access because the defendants have not taken sufficient action to make it unlikely their injury would not recur.
9. The court’s conclusion that plaintiffs have pleaded enough at this stage of the proceeding is consistent with the Supreme Court’s instruction for courts to take a broad view with standing in civil rights cases, especially where complaints by private persons are the primary method of obtaining compliance with the act, as is the case with Title III of the ADA. It is also consistent with congressional intent for the ADA to provide broad protections for persons with disabilities.

II

Mission Working Dogs and Individual Nondisabled Plaintiffs Have Standing to Pursue Their Claim

1. The ADA defines a person broadly to encompass not only natural persons but associations and organizations. The Maine civil rights statute is even more explicit.
2. Title III of the ADA goes further than Title II of the ADA when it defines discrimination to include conduct directed at an entity based on its relationship or association with persons with disabilities. 42 U.S.C. §12182(b)(1)(E).
3. Mission Working Dogs undisputed mission is to support the community by training service dogs for individuals with mental and physical disabilities and therefore, clearly has a relationship or association with individuals with disabilities.
4. Defendants do not claim that Mission Working Dogs lack standing to pursue injunctive relief due to its organizational status. Accordingly, the court assumes that its status as an organization does not prevent it from obtaining injunctive relief on behalf of its volunteers. Such a view is consistent with the Supreme Court’s directive for lower courts to take a broad view of standing in civil rights cases, including those addressing the ADA.
5. With respect to the persons without disabilities that were part of the group, the record is clear that the three plaintiffs without disabilities were known to have a relationship or association with individuals with a known disability, and therefore have standing to pursue their claims.

IV

Court’s Reasoning That Title III ADA Claims and Maine Human Rights Act Claims Are Viable

1. The language of Title III requires an adverse action against the plaintiff. Plenty of evidence exists that all of the plaintiffs experienced an adverse action when the defendant’s representatives asked the group to leave the mall. There is no reason why individuals to meet the adverse action requirement should be required to have been handling a service animal when asked to leave the mall.
2. It is common knowledge that service animals are used by individuals with disabilities. Further, the record supports that defendant representative knew the animals were service animals.
3. The temporal proximity between the phone call that service animals in training were loose in the store and the requests that the group leave the mall is instructive, and suggests that the group was first asked to leave soon after mall security received a phone call from one of the doors employees in the mall.
4. The nondisabled plaintiffs open and obvious association with identified service animals in training, as well as with individuals with plainly apparent disabilities, is sufficient to conclude that the request they leave was on account of their disability. So, a jury could reasonably find that plaintiff were asked to leave a place of public accommodation minutes after receiving a phone call that service animals were running around the store.
5. DOJ regulations and commentary make clear that individuals may self train animals without obtaining formal certification. The DOJ justified that decision by noting that a certification requirement would increase the costs of acquiring a service animal, which could have the effect of limiting access, and that the training standards were too lengthy and detailed.
6. Absent clear guidance from the First Circuit on whether the ADA protects service animals in training, the court concludes that the Ninth Circuit and the Seventh Circuit as well as fellow district courts that have considered the issue, have well reasoned and persuasive opinions aligning with Congress’ broad mandate that the ADA eliminate disability discrimination nationwide. Undoubtedly, the dogs involved in this case were service dogs in training engaged in training as part of the methodology to be service dogs. Accordingly, the fact that they were service dogs in training does not stand in the way of the court deeming them service animals under the ADA and the Maine Human Rights Act.

V

Court’s Reasoning That Certain Defenses Do Not Apply

1. A genuine issue of material fact exists as to whether the animals were emotional support v. service animals in training.
2. The key question is whether the animal helps persons with disabilities perform tasks to ameliorate the ADA disability.
3. The record supports that the dogs on the day in question were paired with and handled by individuals having ADA disabilities, including traumatic brain injury, posttraumatic stress disorder, epilepsy, a spinal cord injury, amputation, cyclical vomiting syndrome, anxiety, elder Dan Lowe syndrome, anxiety, chronic depression, autism, and POTS.
4. The dogs performed a variety of tasks, including helping a person with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behavior. They were also being trained in the pressure therapy, which is a scientifically backed task where a dog is trained to press on certain pressure points in order to release positive hormones in their individual. They were also being trained to provide mobility assistance and/or posttraumatic stress disorder service and had already mastered some of those initial skills. Therefore, all of the animals were helping person with disabilities perform tasks to ameliorate an ADA disability on the day in question.
5. That one of the dogs later washed out of the program does not change the conclusion that the particular dog was a service animal. At the time, that dog had mastered several disability -related tasks, including one for mobility support as well as for emotional support. The record establishes that the dog sat with the individual to provide support for her anxiety while the group waited for the police’s arrival. Accordingly, that particular dog helped a disabled person perform tasks related to an ADA disability and was a service animal within the meaning of the ADA and the Maine Human Rights Act on the day in question.
6. The U.S. District Court for the District of Puerto Rico recently reached the same conclusion with respect to a dog trained to carry out tasks directly related to her handler’s mental conditions of severe anxiety disorder and panic disorder. In that case, the service animal’s training included detecting panic attacks, getting close to and distracting the plaintiff to help her out a panic attack quicker, and therefore providing emotional support. The dog that washed out of the program in this case was trying to serve the same purpose and the record shows that that the dog provided those services to her handler during the incident underlying this dispute.
7. The law does not require individuals to own a service animal in order to access a public accommodation. It only requires that the dog be under the handler’s control, which is an entirely different concept.
8. The appendix to the DOJ final implementing regulations assume that a dog’s behavior, even a well-trained service dog, is not always predictable and consistent with the regulatory language. Therefore, a public entity must give the handler a reasonable opportunity to get the animal under control.
9. The animals running loose in one of the mall’s stores may or may not have been out of control. They were off leash, but that isn’t the end of the matter. The record does not indicate for how long the two dogs were off leash, or whether they were off leash in the within the control of their handler’s.
10. For the out-of-control exception to apply, per 28 C.F.R. §36.302(c)(2)(i)-(ii)), the animal must be out of control and the animal’s handler does not take effective action to control it. (Emphasis in opinion). In the event the two animals did become out of control, the record does not indicate whether or not the handlers for those animals failed to take effective action to control their animals. The record does establish that at another moment in the training while the group was inside a store, the dog assigned to one of the individuals was not cooperating and needed a break, and the dog and its handler then left the store. Therefore, that suggests a reasonable inference that volunteers took steps to maintain control of their animals when needed.
11. The record also establishes that a place of public accommodation did not give the handler a reasonable opportunity to get the animal under control.

VI

False Imprisonment Claim Survives

1. Under Maine law, a false imprisonment claim may be brought when an actor, without authority: 1) intends to, and does in fact, confine another; 2) within boundaries fixed by the actors; and 3) the victim is conscious of the confinement or is harmed by it.
2. Plaintiff’s position is that they were falsely imprisoned after the South Portland police had been called.
3. The record supports that as the parties waited for the police to arrive mall management ordered a mall security guard to keep his eyes on the plaintiffs and not let them leave. Mall security was also told to not allow the group to come any further into the mall. The record indicates that some of the group held their ground to educate the public while other members of the group felt scared, not free to leave, and worried that if they did try to leave, the mall security guard would stop them. Statements were made so as to give members of the group justifiable concern that they were not able to leave and if they did leave that they would be evading an arrest warrant.
4. Accordingly, a reasonable jury could find that the plaintiffs were intended to be confined within fixed boundaries, that the action resulted in such confinement, and the plaintiff were conscious of that confinement.

VII

Court’s Discussion of the Statutory of Civil Penal Damages under the Maine Human Rights Act

1. 5 M.R.S. §4613, here, allows for remedies for a respondent of a civil penalty not in excess of $20,000 for a first violation and not in excess of $50,000 for a second violation, and not in excess of $100,000 for a third violation of the Maine Human Rights Act.
2. The plain language of the statute Civil penalties refers to the victim. In fact, §4613(2)(B)(7), explicitly references a victim when discussing the penalties. Accordingly, the statutory cap on damages is for each individual plaintiff rather than the group as a whole.
3. Such a holding is consistent with how it works in the employment context under Maine law.
4. Such a holding is also consistent with the purpose of punitive damages as punitive damages are directed at deterring and punishing defendants and not designed to compensate plaintiff for losses.

VIII

Thoughts/Takeaways

1. I am not licensed to practice law in Maine. It is always important to find a licensed attorney in your jurisdiction for these kinds of things, particularly so when the state law goes beyond the ADA.
2. As we have mentioned previously, it isn’t two questions at all but rather two inquiries. So, if it is not readily apparent what the dog’s purpose is for, two inquiries can be made.
3. I frequently see statutes at the state level as well as court opinions talking about whether one of the questions is whether the service dog is needed because of a disability. That question makes no sense because you are trying to determine whether the dog is a service dog to begin with. The final regulations don’t phrase it that way. The question is whether a dog is needed because of a disability.
4. A person with a disability is not required to engage in a futile act with respect to claiming injunctive relief.
5. Title III of the ADA protects persons with disabilities as well with those who associate with people with disabilities. For that matter, so does Title I and there is case law holding the same with respect to Title II as well.
6. Adverse action gets construed broadly in accordance with the purpose of the ADA.
7. Service animals in training may indeed be service animals if they are satisfying the two inquiries laid out by DOJ in their final implementing regulations.
8. Anyone can train their service animal. Therefore, state statutes (such as those in Georgia for example), suggesting that only selected individuals can train a dog to be a service animal will fail, as this case clearly illustrates.
9. As this case illustrates, the line between a service animal in training and a dog acting as a service animal can be incredibly small. The same goes for the line between an emotional support animal and a psychiatric service animal.
10. It doesn’t matter whether the dog is participating in a program and later washes out of that program. The key is whether the dog was acting as a service animal at the time of the incident.
11. Ownership is irrelevant. Instead, the handler’s control over the dog is the critical issue.
12. One wonders if there isn’t a little bit of play in the joints so to speak with respect to the handler’s control in light of Loper Bright.
13. A dog is not always expected to get it right every time because it is an animal after all. A handler must be given the opportunity to step in with respect to those situations.
14. Other state law claims may come into play, such as false imprisonment.
15. State law claims may allow for damages beyond the limited remedies available under Title III of the ADA. Those damages, depending upon the situation and depending upon the facts of the case, may add up in a hurry. For example, the damages in this case could be $200,000, assuming a first violation and 10 people.
16. For figuring out whether a dog is a service animal, the key question is whether the dog helps the person with the disability by performing tasks to ameliorate the ADA disability.
17. A large part of my practice is training. This case clearly shows the necessity for Training (for places of public accommodations as well as for the police), training, training, and more training.

Baseball is back!