When Madison police pepper sprayed and Tasered Stephen Bottila last month after he refused to leave a McDonald’s restaurant with his service dog, it was just the latest skirmish in an ongoing battle.

Bottila, who has epilepsy and says he relies on his dog, Justice, to alert him to possible seizures, said he was simply exercising his right — protected by federal and state laws — to be accompanied by the 12-year-old shepherd mix.

Police say they were justified in using force on Bottila because he refused to leave after finishing his food and fought with officers who tried to physically remove him.

Yet federal and state laws give people with disabilities wide latitude to take their service dogs into places where animals normally aren’t allowed. And the Madison Police Department has established protocols for dealing with the issue — created specifically in response to past contacts with Bottila — although records show officers have dealt with complaints from businesses inconsistently.

In at least four prior incidents involving city police and two with town of Madison and Fitchburg police in the past two years, Bottila says was prohibited from being in restaurants, stores and other places allowed by law where his service dog has been an issue. In at least two instances, city police took no action when employees called them about Bottila and his service dog, police records show.

To Bottila, 37, it’s a question of exercising his civil rights. "Without civil rights, I have no life to protect," he said.

But Madison Police Capt. Victor Wahl said Bottila — who has filed a federal lawsuit against the department and discrimination complaints against local businesses — has made a "hobby" of inciting confrontations over the issue and has told officers he sees "it as an opportunity to make a living off of lawsuits against police."

Bottila, whose encounters with city police began when he was homeless, "is not helping anyone’s cause" with his approach, Wahl said. In its response to the federal lawsuit, which a judge has ordered to go to trial, the city denies violating Bottila’s rights.

'Repeated demands for proof'

Bottila, who takes his service dog into many businesses without incident, denies setting out to create conflicts.

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. Wisconsin also has similar laws.

But Bottila said business employees and police have repeatedly demanded proof that he is disabled and that Justice is a service dog.

While some businesses have been slow to accommodate him, police have acknowledged Bottila’s rights under the ADA — although enforcement has varied.

Last year, Town of Madison Police held a training on service animals after two incidents involving Bottila and Justice at an Open Pantry at 2504 Rimrock Road, said Chief Scott Gregory.

"Personally, I was lacking in my knowledge on service animals," Gregory said.

Service animal image

The image many people have of a service animal is a dog on a short halter assisting someone who is blind. But the law doesn’t specify what functions a service dog must perform, nor require any identification, such as a special leash or vest.

Bottila said Justice alerts him before he has a seizure by putting his ears out to the side and giving Bottila a funny look. Bottila then wipes a magnet across a small device implanted under his skin, which produces electrical signals to stimulate the vagus nerve and helps prevent seizures.

If he has a seizure, which happens about twice a month, Justice protects him by staying beside him and licks his face, Bottila said.

"The facts here suggest that this animal is indeed a service animal," said Alejandro Miyar, a spokesman for the U.S. Justice Department. "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. As such, the owner need not provide certification or proof of the animal’s status as a service animal."

Harassment complaint

In the May 26 incident, it was Bottila who first called 911 to complain he was being harassed by a manager at the McDonald’s at 2402 S. Park St. over his service dog. A minute later, the manager called 911 and said it was apparent Bottila did not have a disability and would not leave, but that Bottila was not causing a disturbance or being violent.

According to a police report, the manager told the responding officer that Bottila said Justice was a service animal, but the manager did not know if that was true. He also said other managers have told him Bottila comes into the restaurant and tries to confront staff, and that he wanted Bottila removed from the premises and told not to return.

A complaint filed by Bottila with the city’s Department of Civil Rights over a 2007 incident at the same McDonald’s is pending.

Officers eventually used pepper spray and a Taser on Bottila after he resisted their efforts to physically remove him. He was taken to the Dane County Jail, while Justice was taken to the Dane County Humane Society for two days until Bottila was released on a signature bond after being charged with obstructing police and misdemeanor bail jumping.

Linda Kilb, an attorney with the Disability Rights Education and Defense Fund in Berkeley, Calif., said it appears that police not only aided McDonald’s in violating Bottila’s civil rights but that police also violated his rights by treating Bottila differently than other customers.

"That’s not an opinion that we agree with," Wahl said.

Legal bulletin

Last August, state Senate President Fred Risser, D-Madison, wrote to Madison Police Chief Noble Wray on Bottila’s behalf, asking how the department distinguishes between "someone who truly has and needs a service animal" and "someone who just brings an animal into an establishment to cause trouble."

In his response, Wray said the department did not have a policy but had issued a legal bulletin including the department’s protocol in such cases. The bulletin, issued by Wahl in February 2008, states, "Generally, if a person states that they have a disability and that their animal is a service animal, they (and the animal) have to be allowed into businesses open to the public."

It also states: "Officers should not assist businesses in removing persons with service animals simply because of the animal (even if there is no evidence that the animal is actually a service animal)."

Wahl said officers are expected to know and follow that protocol, even though it is not in the department’s policy manual.

Even before the memo was issued, Madison police officers took no action on two occasions when managers at another McDonald’s at 4687 Verona Road called police to complain about Bottila’s service animal. In one report, Officer Sarah Stauffer said she contacted a manager by phone and "explained that MPD cannot take any action in this situation due to ADA regulations." She also gave McDonald’s a copy of the regulations.

Mike Mangin, vice president of Missoula Mac, which owns both the Park Street and Verona Road McDonald’s, declined comment, saying, "This is ongoing litigation."

Provide proof

Wahl said if Bottila were being reasonable, he would provide proof that Justice is a service animal, even though the law doesn’t require it. But Bottila said when he has shown officers a letter he requested from LaVonne LaFave of the city Parks Division stating that Justice is a service animal, it was not accepted as proof.

Madison police spokesman Joel DeSpain said if Bottila believes his rights were violated or he has been a victim of police misconduct, he could file a complaint with the department in addition to a lawsuit.

"We have a lot of respect for people with disabilities and service dogs," DeSpain said. "Certainly we want to uphold the rights of those people and their animals in general."

State Journal reporter Patricia Simms contributed to this report.