April 13, 2017

"Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit."

"Now the Third Circuit... reversed grants of summary judgment in favor of the two blog writers and ruled that they could properly be sued for damages for creating a hostile environment under the Fair Housing Act."
It described as “harassment” various instances of their critical speech and noted that a single instance of harassing speech could give rise to liability under the law. It is not clear whether the parties raised, and the court did not make any gesture toward considering, whether some or all of the statements involved might be protected by the First Amendment, which is mentioned nowhere in the opinion....
ADDED: Here's the opinion. Key passages:

Under the Fair Housing Act, “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed . . . any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C. § 3617....

The term “interference” is not defined by the Fair Housing Act or the implementing regulation, 24 C.F.R. § 100.400 (2016). Therefore, the word must be “understood by its ordinary meaning.”... Interference under Section 3617 may consist of harassment, provided that it is “sufficiently severe or pervasive” as to create a hostile environment....

Walters and Kromenhoek allege that Felice, their neighbor, violated Section 3617 by posting derogatory, harassing and, at times, threatening comments on Talkington’s blog. Felice wrote that dog owners might be “happier in another community rather than ostracized at [Cowpet], which would be another fine recourse, besides a significant $$ fine, with progressive amounts.” App. 1905. He wrote that someone who needed an emotional support animal “might go off his/her gourd” in a “violent reaction. We don’t even know we need protection![] Bad Law![]” App. 1906-07. He wrote “[i]f you can’t remove the guilty, you can certainly ostracize them.” App. 1920. He called dog owners “miscreants” and “totally selfish, spoiled, brats, willing to flaunt their illegality in every one[’]s face.” App. 1939. He wrote that dog owners’ “gall and nerve require full responce [sic], with ostracizing the offenders in every manner at our disposal,” including “[i]solat[ing] them completely to their little ‘dog patch’ on the beach and ignor[ing] them at every venue or occasion![]” Id. He wrote that “failure to comply [with the no dogs rule] must lead to liens and even foreclosure, if needed, for compliance to be effective.” Id.

Felice posted at least nine harassing messages, over a period of more than five months, from October 2011 through March 2012.17 All of these writings were made public on the Internet. Felice continued his postings even after Walters responded, on the blog, that she was “mortified, that my personal business has been laid out over the internet without my permission or forewarning.” App. 1912.

We conclude that there are genuine disputes of material fact “over the inferences that can be reasonably drawn from” Felice’s blog posts.

A reasonable jury could find that Felice’s harassment was sufficiently severe or pervasive as to “interfere” with Walters and Kromenhoek’s fair housing rights under 42U.S.C. § 3617. A reasonable jury could also infer that there was a causal connection—that Felice engaged in harassing conduct “on account of” Walters and Kromenhoek’s exercise of their fair housing rights. Id. Accordingly, we will reverse the grant of summary judgment for Felice.

Walters and Kromenhoek allege that Talkington, their neighbor, interfered with their fair housing rights by writing on his blog. Talkington named Walters and Kromenhoek and made public and derided their requests for accommodation of their disabilities. He posted that “Barbara[] [Walters] has a dog and claims to have ‘papers’ that allow her to have it.” App. 1904. He wrote that Walters “has a pet and should be fined.” App. 1910. Talkington posted an email from Harcourt to both Walters and Kromenhoek stating that they were in violation of the “no dogs” rule. Talkington wrote that Walters and Kromenhoek were “known violators” and that their emotional support animals were “illegal neighborhood puppy dogs.” App. 1924. He wrote that Walters and Kromenhoek’s certifications for their emotional support animals were issued by disreputable websites without “verify[ing] either the animal’s credentials or the purported disability.” App. 1930. He suggested that Walters and Kromenhoek obtained their emotional support animal certifications from “diploma mill[s]” that would accept “stress” as a disability. App. 1935. Talkington wrote that Cowpet should “go on the offensive” and sue Walters and Kromenhoek. App. 1938. He explained that this would force them to “spend[] their own cash,” and “the rubber will meet the road on how far everyone is willing to go on this issue.” App. 1941.

Overall, Talkington posted numerous harassing blog posts and comments over more than five months. He posted these comments publicly on the Internet. He continued to do so after Walters expressed her “mortifi[cation]” that her need for an emotional support animal was made public. App. 1912.

We hold that there are genuine disputes of fact over the inferences that can be drawn from Talkington’s blog posts. Windsor, 986 F.2d at 659. A reasonable jury could find that his conduct constituted harassment that was sufficiently severe or pervasive as to “interfere” with Walters and Kromenhoek’s fair housing rights. 42 U.S.C. § 3617. A reasonable jury could also find that there was a causal connection between Talkington’s conduct and Walters and Kromenhoek’s exercise of their fair housing rights. As such, we will reverse the grant of summary judgment for Talkington.

45 comments:

James Pawlak said...

Enemies of the Constitution---And of the PEOPLE.

Hagar said...

Is this law - or a ruling by the bureaucracy?

Balfegor said...

Come on, don't you see the way the winds are blowing? Free speech is hate speech, don't you know?

Owen said...

What a bunch of losers.

We need to go to court over crap like this?

Dismiss, with prejudice. And require each side to pay all the damages, x 10, and deliver it to a charity.

Freeman Hunt said...

Part of the "use the courts to make people act nice" trend.

themightypuck said...

People respond to incentives. This is the second oldest law behind do what thou wilt. Or actually the third oldest behind "don't wilt". This is the basis of the seething evil of ethno nationalist and the like. In-group incentive can be social pressure but out-group incentive must be the sword.

cubanbob said...

Were there any threats implying violence? Something that a reasonable person could construe as fear inducing? If not, then this needs to be slapped down by the Supreme Court. Statute does not trump a constitutional right.

Gahrie said...

Aren't all pets emotional support animals? Seriously. The whole point of owning pets is that they make you feel good.

Gahrie said...

Part of the self-entitled assholes who "use the courts to make other people act nice" trend.

FTFY

Gahrie said...

Reasonable. You Keep Using That Word, I Do Not Think It Means What You Think It Means

DanTheMan said...

I think I get it: Expressing a different opinion than mine creates a hostile environment for me.

Sounds legit.

HoodlumDoodlum said...

A reasonable jury might find a handful of blog posts expressing a pointed opinion to be harassment, and that that harassment would be a violation of the opinion's target and/or of a person offended by the expression's statutory rights under the FHA?

Is it worse if that statement is ridiculous, or it it's not? Poll a group of students there in Madison--I'll bet more than half agree that sounds correct. Toss in that the opinion here is against allowing service animals and I'll bet it'd be 3/4.

Oh well. I'd look up what the ACLU's had to say in the matter, but what's the point?

FullMoon said...

Putting aside the service dog argument, I would not want any of my personal stuff put on internet by a neighbor, or anyone else.

Richard said...

These types of laws are written so that not only do the people have more rights than you do, but you are not allowed to question whether they are violating the law. In other words it has a built in Catch-22. The same holds true for the ADA. If a businessman asks for proof that the person has a legitimate right to bring a support animal into his place of business, he is violating the ADA.

Balfegor said...

I guess the rule now is conceivably that the FHA not only deprives citizens of the right to create a pleasant animal-free shared living environment (if you're in a multiple occupancy dwelling), but also deprives them of the right to complain about it too aggressively. In the fashion of people who post hyperbolic comments on blogs (ahem).

If it were something like invasion of privacy, I'd be more sympathetic -- their private business is being aired publicly, after all, and no one likes that. But putting it in terms of "fair housing" causes all my sympathy to dry up. The plaintiffs sound like awful people.

This is why we can't have nice things.

pacwest said...

My wife owns a service dog (mobility). One of my pet peeves are "emotional support" animals. A Service Dog is highly trained to do a specific task and knows what is is expected of them and how to act in public. "Little Fluffy" just runs around sniffing stuff and licking things. I've confronted people several times when they've brought what was obviously not a working dog into a store.

As pointed out above they are all emotional support animals. POS owners of little fluffy make it harder for working dogs to be accepted. I love dogs, but I'd love to stuff little fluffy up the owner's ass when they try to pass them off as working dogs.

Sebastian said...

But who will rid us of these troublesome harassing judges?

Rabel said...

Plaintiff Walters committed suicide in 2014.

StephenFearby said...

Daily Beast, April, 2016

'The city of Beaver Dam, Wisconsin revised their laws to classify service animals as dogs and miniature horses, after a local woman made national news for getting kicked out of a McDonald’s with “Jimmy,” her therapy kangaroo.

Even the Trumps are in on the trend.

Ivana Trump allegedly flashed a therapy animal card when toting her miniature Yorkie into Manhattan’s high-end Altesi Ristorante in June 2014, sparking complaints from other diners.
“Lunch was ruined because Ivana Trump sat next to us with her dog which she even let climb to the table.

I told her no dogs allowed but she lied that hers was a service dog,” reads a review on the restaurant’s Google review page, discovered by the New Yorker’s Patricia Marx.

When Marx called the restaurant, owner Paolo Alavian said he was obligated to allow support animals. “She walked into the restaurant and she showed the emotional-support card,” Alavian told her. “Basically, people with the card are allowed to bring their dogs into the restaurant. This is the law.”

But it isn’t the law in New York or in Colorado, despite popular belief.'

http://www.thedailybeast.com/articles/2016/04/02/finally-colorado-is-cracking-down-on-service-dog-fraud.html

Ivana might well claim the need for an emotional support animal after years of marriage to The Donald. But I don't understand why she didn't pick a pot-bellied pig as her fond token of remembrance.

Big Mike said...

I don't believe in service animals for able-bodied individuals, and I certainly don't believe in "emotional support" animals. I believe that the rights of people to live in animal-free environments trump the rights of people who are labeling their pets as "emotional support animals" (what pet isn't?) and service animals that do not provide a needed service. (Obviously seeing-eye dogs are different, and I have read about monkeys who use their hands on behalf of quadriplegics, which I would also exempt.)

Here's a hypothetical. One of my wife's friends is extremely allergic to cats, and by extremely allergic, I mean needs to have an epi-pen handy. If she lived in that condo whose rights should predominate? Her right to be able to step out into the hall without carrying an epi-pen or the rights of other tenants to have cats for "emotional support"?

Chuck said...

I would absolutely love to know what Professor Atlhouse's opinion was, on this Third Circuit decision.

The panel was three Clinton nominees. And this was a U.S Virgin Islands (!?) case. The Virgin Islands are assigned to the Third Circuit.

I'd also like to know how Althouse became aware of the case in the first instance. I see it coming up on some of my own favorite legal blogs, like the great Walter Olson's "Overlawyered" blog.

Chuck said...

Oh, and one more thing; the decision is going to be a published, precedential decision.

For the Third Circuit; that includes all of Pennsylvania, New Jersey, Delaware... and the Virgin Islands(!) this is YOUR law now. Binding federal precedent.

Jupiter said...

"A reasonable jury could also find that there was a causal connection between Talkington’s conduct and Walters and Kromenhoek’s exercise of their fair housing rights."

That would seem to imply fairly directly that Walters and Kromenhoek's fair housing rights were granted in violation of the First Amendment, and the law that granted them is unconstitutional.

Jupiter said...

Rabel said...

"Plaintiff Walters committed suicide in 2014."

Perhaps I was a bit hasty. There may be a God after all.

skeptic said...

Wouldn't it be nice if, borrowing from the relevant statute, another was passed that said “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed . . . any right granted or protected by the Constitution of the United States." Then a lawsuit like this could be treated as an attempt to intimidate or interfere with someone trying to exercise their First Amendment rights. And I nice counterclaim could be filed. Ah, to dream.

readering said...

Torn. Emotional support animal seems like a bs protection. But it also seems like the bloggers were engaging in harassment. Not as much harassment as Chuck suffers here, admittedly, but still.

Ann Althouse said...

@chuck

Your questions are answered in the pist.

Click on the link to see where i found it.

Notice the tags to see what I think.

sean said...

Here's some retired lawprof who spent her whole life fighting--well, at least in the faculty lounge--for lefty causes, and suddenly she's worried that her children don't care about the First Amendment. It's like some old Trotskyite denouncing Stalin for his disregard of due process. I crashed my car into the bridge.

Michelle Dulak Thomson said...

Gahrie,

The whole point of owning pets is that they make you feel good.

That is totally true.

StephenFearby, there is no such person as "Ivana Trump." Not that you're the first person to make that particular mistake.

Michelle Dulak Thomson said...

Big Mike,

I live alone most of the day, and honestly my two cats are "emotional support," though I wouldn't designate them as such nor take them out in public except to the vets.

My point, though, is that this is what they do for me. Should I lie and say they don't do it? That I'm just a selfish woman who wants cats around as objects to kick, or something? I want cats around to pet and cuddle, like most people. And if I get clawed (usually in an ill-considered "biscuit-making incident"), I'm prepared to take it like a woman.

Michelle Dulak Thomson said...

Correction to StephenFearby: Yes, there is an Ivana Trump. She's two divorces down from The Donald, but still uses his name.

Chuck said...

Althouse:

Yeah, I sort of guessed it from "lawsuits I hope will fail," but I was hoping for just a bit more analysis. As for your source, I just wasn't sure if you read about this case somewhere else, and then used the linked webpage just for the elucidation of your readership.

Achilles said...

Will there be a lawsuit when people start feeding these "support animals" chocolate or doggy treats mixed with miralax? =(

Aw pookie! Here's a treat! Please deposit it on your owners carpet tonight.

Paul Zrimsek said...

The appellees knew they were in trouble the moment they saw the judges' emotional support kangaroos.

openidname said...

I've actually read the Third Circuit opinion. I expect I'm in a minority.

It doesn't mention the First Amendment. Unless and until this is shown to be disingenuous, I'm going to assume that's because it wasn't properly and timely raised as an issue. Of course, if you put on First Amendment blinders, then there's nothing wrong with the opinion.

Having said that, the justices should have raised the First Amendment on their own stick, because it's just a horrible, stinky, festering precedent that's going to be wrongly read as holding that the ADA overrides the First Amendment.

Richard Dolan said...

A commentary about the case at Volokh (I think that's where I saw it) noted that defendants had not made a First Amendment argument either in the D Ct or on appeal, and that the Third Circuit was taking the notion of verbal harassment that arguably creaties a hostile work environment from the Title VII context, where it's been given a broad reading despite First Amendment concerns, and applied it to public speech on a matter arguably about a community concern in a non-employment context where the harassment concept cannot be applied broadly. See e.g., Snyder v. Phelps (anti- gay sloganeering at a military funeral is protected speech).

Perhaps the SCOTUS will grant cert, since there are at least four justices who take an expansive view of First Amendment rights and are likely to find the issue important (assuming it wasn't waived) and this decision troubling.

Birches said...

I can't believe this is real...

Big Mike said...

@Michelle Dukakis Thompson, but would you force your way into a condo that had a strict "no pets" rule by calling your cats support animals? I think you're too honest to do that.

Kate said...

This is a condo with a "no pets" clause, right? And then dogs were brought in. No, stop, go no further. That's the end for me. The rest -- internet postings, shaming -- is blather.

You need a support pet? Move.

David said...

I owned a condo once. Lesson learned. Never again.

Matthew Sablan said...

"I love dogs, but I'd love to stuff little fluffy up the owner's ass when they try to pass them off as working dogs."

-- I don't blame the dog because the owner does something wrong with the dog. At least in Little Fluffy's case; the person hasn't ruined the dog through abuse or neglect.

SGT Ted said...

People using "Emotional Support" animals are just people saying to the rest of us "Fuck you, I don't have to obey the rules, or honor contracts I agreed to and I can use this to violate other laws with impunity".

Bad Lieutenant said...

Achilles said...
Will there be a lawsuit when people start feeding these "support animals" chocolate or doggy treats mixed with miralax? =(

Aw pookie! Here's a treat! Please deposit it on your owners carpet tonight.
4/13/17, 10:18 PM

Achilles, I would be shocked and saddened if you were actually to do that to an innocent animal whose only offense was being arguably misdeployed by its owner. Incidentally, chocolate is toxic to dogs. So please don't do that.

Kirk Parker said...

Bad Lt.,

We need an equivalent to the felony murder rule here, where anything bad that happens to the poor innocent animal gets attributed to the owners who brought them where they shouldn't have.

0_0 said...

The ADA prevents certain classes of people- not everyone- from questioning their disability.
However, a poodle wearing a surcoat, carried in someone's arm while they finger the produce in the grocery store, is self-evidently not a Service Animal. The owners, in my experience, get VERY defensive when politely informed of the health code violation. I don't care; if any fortitude was ever needed I would just recall cleaning up after the adorable doggie drops of poo down an aisle into the ladies' room, and all over the toilet. (The owner made no move or effort to clean anything.)
"Therapy pet", ugh. Please don't bring them into everyone else's spaces, please.