The Third Circuit’s (Support) Dog House

One of the reasons some people prefer a condo, just as others reject one, is that they come with rules. If you like the rules, then it’s the right place for you. If not, then maybe you would do better elsewhere. One common rule is no dogs. Regardless of your feelings toward critters, some people prefer it that way. Are they not allowed?

Well, sometimes the answer is no, when the rules of private accommodations clash with government regulations.

Two residents, Walters and Kromenhoek, had emotional support dogs authorized by their doctors (these were not “service dogs” as defined by the statute, though the plaintiffs called them service dogs). As you can imagine, other condo residents are not OK with the facial violation of the condo rules. Talkington blogged about the situation, and he and another resident Felice repeatedly complained about it for months.

Walters and Kromenhoek sued Talkington and Felice for alleging violating 42 U.S.C. § 3617, which says: “It 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, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section 3603, 3604, 3605, or 3606 of this title.”

Two residents didn’t like the way two other residents flouted the rules with their “support” dogs, and wrote about it.

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.”

Sometimes, people will be mortified when their “personal business” that affects others goes public. That’s the nature of imposing one’s choices on others. Except the Third Circuit held this mortification to state a sufficient claim to go to trial in Revock v. Cowpet Bay West Condominium Association. As Hans Bader explains:

A recent ruling by the Third Circuit Court of Appeals menaces free speech in condominiums, apartment buildings, and the Internet. It allowed individual bloggers to be sued because their blog posts allegedly created a “hostile housing environment” for condo residents who kept emotional-support dogs despite the condominium’s no-dogs rule. This “hostile environment” allegedly rendered those blog posts “harassment” in violation of the Fair Housing Act. The provision the court cited does not even mention a hostile environment, but rather makes it illegal “to coerce, intimidate, threaten, or interfere” with the exercise or enjoyment of rights under the Fair Housing Act. (See 42 USC 3617).

Does criticizing and challenging the dubious, if totally trendy, accommodation of needing a support gerbil rise to an actionable claim? You bet, they say.

The court justified this extremely expansive reading of the statute by citing a speech-restrictive regulation imposed by the Obama administration that purports to interpret the statute. After defining illegal interference to include the creation of a “hostile environment,” that regulation states that “[h]arassment can be written, verbal, or other conduct, and does not require physical contact.” 24 C.F.R. § 100.600(b) (2016). In addition, “[a] single incident of harassment because of race, color, religion, sex, familial status, national origin, or handicap may constitute a discriminatory housing practice, where the incident is sufficiently severe to create a hostile environment, or evidences a quid pro quo.” 24 C.F.R. § 100.600(c) (2016).

Notably, few would argue that the prohibitions against discrimination based on race, color, sex (oh no, that word again) raise questionable claims. But the problem arises with the vagary of “handicap,” a word once commonly understood to refer to an objectively quantifiable challenge such a blindness or deafness, which has since slid down the slope to the most fragile among us.

Stressed? Get a puppy. Not a legit trained dog to compensate for lack of eyesight, but one that bears the imprimatur of supportiveness because a downloaded certificate says so. Was this the case for the “mortified” Walters? Maybe. Maybe not. Either way, does it create a hostile environment to challenge it, to be seriously pissed off that this conceptually dubious conflation of service dog and support dog has taken one’s “no pets” condo and turned it into a menagerie?

Yes, says Judge Luis Felipe Restrepo. Yes it does. What makes the expression of disapproval, of anger at the violation of two condo owners’ expectations that the rules they preferred by two others who claim their dogs under color of law, harassment?

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.” He wrote that Walters “has a pet and should be fined.” 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.” 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.” He suggested that Walters and Kromenhoek obtained their emotional support animal certifications from “diploma mill[s]” that would accept “stress” as a disability. Talkington wrote that Cowpet should “go on the offensive” and sue Walters and Kromenhoek. 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.”

To the unwoke eye, this may seem to be a completely legitimate challenge to some people whose decision was that their support desires trump others’ right to expect the rules of the house to be enforced. But then, if they’re the sort of folks who need support dogs in the first place, questioning their claims is way more than they could possibly tolerate without making them really, really sad.

But what of the First Amendment rights of the bloggers?

The words “free speech” and “First Amendment” do not appear in the opinion once. Although the Virgin Islands doesn’t have an anti-SLAPP law, the words “petitioning” or “SLAPP’ never appear in the opinion either. Yet, Talkington and Felice were discussing issues of significant interest to their local community (the “no dogs” policy) as well broader social issues (dogs as “emotional support animals”). They were also discussing if and how the condo association should enforce against a facial violation of the condo rules. Whether or not Talkington and Felice had exclusionary intent, the First Amendment creates some space for them to publicly vet these important issues. Without any analysis of the First Amendment in the opinion, we’re left to speculate how Talkington and Felice could publicly discuss these issues without violating 3617. Instead, in the conflict between civil rights and civil liberties, the court overrode the free speech and petitioning rights of Talkington and Felice to protect the civil rights of other community members.

So the defendants’ lawyers totally blew the free speech defense? Maybe, though without reading the briefs this can’t be said with certainty. Even so, one would have expected the Third Circuit to have a passing familiarity with the First Amendment, such that it recognized the conflict between the defendants’ constitutional right to express their views and the plaintiffs’ attenuated statutory right to want their comfort dog, the rules of the house be damned.

8 thoughts on “The Third Circuit’s (Support) Dog House

  1. Pingback: Third Circuit: neighbors who criticized condo residents over emotional support dogs must face civil rights suit - Overlawyered

  2. Keith

    without reading the briefs this can’t be said with certainty

    I took a look at the briefs to see if the first amendment really made no appearance, as it seemed insane.

    Not only did the words “first amendment” or “free speech” not appear in appellant or appellee briefing, they also didn’t appear in the amicus brief of the United States filed by Vanita Gupta and other DoJ lawyers.

    Perhaps, like the second amendment, the first is no longer applicable in the third circuit.

    1. SHG Post author

      Always good to learn Vanita cares no more for the Constitution than anyone else at DoJ. You go, girl!

  3. Richard Gere

    Does criticizing and challenging the dubious, if totally trendy, accommodation of needing a support gerbil rise to an actionable claim?

    Don’t you know that all gerbil references will cause hurt feelz?

    1. SHG Post author

      I’m counting on it. Interesting choice of ‘nyms, you got there. Been a while since that one was around.

  4. Fubar

    … “the rubber will meet the road on how far everyone is willing to go on this issue.”

    To support my emotions, my krait
    Is always a source of delight.
    I say “Love it and pet it”
    To those who don’t get it,
    And tell them he won’t ever bite!

  5. Erik H

    Last ESA case I had in Massachusetts, the “papers” were from the Internet and the ESA “diagnosis” was from a chiropractor in Texas; i.e. also from the Internet. But the feds are so anal about pushback there is nothing the owner can do but cave, practically speaking. It’s a horrible law.

Comments are closed.