Hot Dogs And Judicial Use Of ChatGPT

A divided District of Columbia Court of Appeals has reversed a criminal conviction for animal cruelty in an opinion authored by Associate Judge Shanker with Associate Judges Howard concurring and Deahl in dissent.

The concurring opinion notes that the dissent reflects the first use of ChatGPT in a D.C. court opinion.

Leaving a dog in a car on a hot day is always inadvisable. But is it always criminal? A statute tells us when it is, and, as with all crimes, the government must prove the elements of the statute beyond a reasonable doubt with evidence, not with appeals to common knowledge, common sense, or common understandings of right and wrong. Res ipsa loquitur is not a doctrine in the criminal law.

In this case, on a hot day in early September 2023, appellant Niya Ross left her dog Cinnamon in her car parked in the shade of a tree, with the windows lowered a few inches, for over an hour. Following a bench trial, Ms. Ross was convicted of animal cruelty in violation of D.C. Code §§ 22-1001, 22-1002. At trial, the government presented little if any evidence regarding the temperature within the car, the weather conditions that Ms. Ross’s dog could comfortably tolerate, or symptoms of heat-related distress manifested by the dog.

On appeal, Ms. Ross argues that the evidence was insufficient to support her conviction. The government responds that it is “common knowledge” that a dog would suffer in the conditions present in Ms. Ross’s car that day. Because we do not believe common knowledge suffices to fill critical gaps in the government’s case, we reverse Ms. Ross’s conviction and remand with instructions to enter a judgment of acquittal.

Facts

On the hottest September fourth then on record in the District—reaching a high of ninety-eight degrees Fahrenheit—Zachary Vasile was walking down N Street, NW, toward a supermarket when he heard “loud,” “incessant dog barking.” Turning toward the sound, Mr. Vasile noticed a dog—a “doodle” with “very dense sort of curled hair”—alone inside a car with the windows cracked open approximately three to five inches.

As Mr. Vasile approached the car, the dog noticed him and stopped barking. Because of the “very hot” day and the “very loud,” “constant[ ]” nature of the dog’s barking, Mr. Vasile “realized this was a potentially dangerous situation for the dog.” He shouted for the dog’s owner and attempted to open the door of the vehicle, both to no avail. After about “five to six minutes” of shouting, Mr. Vasile called 311 and explained the situation.

The 311 dispatcher sent “fire, animal control, and police” to Mr. Vasile’s location, putting out an “all call” for a “level [one] emergency,” defined as an animal  “actively . . . in distress with a risk of death or great bodily injury.” Firefighters (the first on the scene) initially “looked around, trying to get a view of the dog.” They then forced a window further open, unlocked the car, and let the dog out. Shortly thereafter, Aristides Torres—an animal control officer—arrived. Officer Torres scanned the dog’s microchip, used the scan results to identify the owner’s phone number, and called the number repeatedly for ten to fifteen minutes. No one answered.

During his efforts, Officer Torres placed the dog inside his van. Once police officers arrived, Officer Torres opened the van to show them the dog. At that time, bodycam footage showed the dog’s tongue sticking out, suggesting that the dog was panting.

Mr. Vasile left the scene after approximately forty minutes, during which time the dog’s owner did not return to the car. Police officers, however, remained on the scene until Ms. Ross arrived at 6:11 p.m.—around an hour after responders were dispatched in response to Mr. Vasile’s call. Officers approached Ms. Ross as she was unlocking the car, asking, “Where’s your dog?” After Ms. Ross confirmed the dog belonged to her, officers placed her under arrest. Body-worn camera footage taken during the arrest shows Ms. Ross’s car parked in the shade of an adjacent tree.

Insufficient evidence

We note at the outset that the evidence presented at trial does not establish two critical facts: (1) the actual temperature inside the car and (2) the presence of symptoms of heat-related distress in Cinnamon.

The government does not contend on appeal that it proved either of the above two facts. Instead, it suggests that it could rely on the factfinder to infer those facts by applying its common sense to other evidence in the record. According to the government, it was enough for it to prove only that (1) the temperature outside of the car was approximately ninety-eight degrees Fahrenheit and (2) Cinnamon would have (had she not been released) remained within the car for approximately one hour and twenty minutes.

We disagree. To be sure, a factfinder may, as a general matter, use their common sense and everyday experience to draw “reasonable inferences from the evidence presented in a trial.” Long, 156 A.3d at 714. But where these “common sense” inferences are grounded in the assumed nonexistence of mitigating facts, they will often “cross[ ] the line . . . into the prohibited territory of surmise and conjecture.” See id. at 714-15. Reasonable inferences must be drawn from, and common sense applied with respect to, evidence; inferences and common sense cannot serve as substitutes for evidence. See id. at 714. Cf. Galloway v. United States, 319 U.S. 372, 387 (1943).

A thumbs up

By reaching this holding, we in no way intend to question the actions taken by Mr. Vasile, the firefighters, Officer Torres, and the responding police officers. To the contrary, we commend them for their heroic efforts; where a situation could be dangerous for an animal like Cinnamon, we hope all would respond just as Mr. Vasile did. And let us repeat: leaving a dog in a car on a hot day is at a minimum ill-advised. The question here, though, is whether it was criminal. And where criminal sanctions are concerned, “could be” is not enough. We thus reverse Ms. Ross’s conviction.

HOWARD, Associate Judge, concurring:

I join the majority opinion and write separately only to address a point of significant interest, raised by the writings of my colleagues, which together represent the first published discussion involving the use of AI tools in decision making at this court. Following in the recent footsteps of Judge Newsom from the U.S. Court of Appeals for the Eleventh Circuit, the dissent makes use of the ChatGPT large language model artificial intelligence tool by OpenAI, and the majority opinion responds in-kind to contrast the effort. See post at 37-39 & nn.4-5; ante at 11 n.2. Deferring discussion to an opinion with precedential force, the dissent points to Judge Newsom’s thoughtful discussion in the Snell case. See Snell v. United Specialty Ins. Co., 102 F.4th 1208, 1221-35 (11th Cir. 2024) (Newsom, J., concurring). I write, since we have broached the topic, to highlight a few brief points not addressed in Judge Newsom’s insightful concurrence, that I have considered personally and as part of our D.C. Courts AI Task Force, which I find important considerations in judicial and court use of AI tools.

To be clear, I cast no aspersion on the use of AI by my colleagues. I find it interesting. AI tools are proliferating and we ignore them at our own peril. Not only for the concerning capabilities they now give parties with ill intent,1 but for the great utility such tools could potentially provide in easing the strain on our increasingly overburdened courts.

AI tools are more than a gimmick; they are coming to courts in various ways, and judges will have to develop competency in this technology, even if the judge wishes to avoid using it. Courts, however, must and are approaching the use of such technology cautiously. Specific use cases are being considered and we must always keep in mind the limits of different AI tools in how and when we use them, particularly with regard to security, privacy, reliability, and bias, to ensure ethical use.

Broadly, an AI system can be susceptible to bias at multiple points in its execution. Model Code of Judicial Conduct Rules 2.2 and 2.3, dealing with impartiality and fairness and bias, prejudice, and harassment, are potentially implicated in reliance on a system infected with bias. Ignorance of the technology seems like little defense in consideration of the duty of competence in Rule 2.5. Other issues abound, but security and confidentiality of court information are particular concerns. Accordingly, before using an AI tool a judicial officer or staff member should understand, among many other things, what data the AI tool collects and what the tool does with their data.

DEAHL, Associate Judge, dissenting:

Niya Ross left her dog alone in a parked car in ninety-eight degree heat for an hour and twenty minutes. Ross parked her car facing directly into the sun, with minimal shade coming off a nearby tree, and left during the hottest portion of the hottest September 4 on record in the District’s history—the late afternoon (from about 4:50 to 6:10 p.m.). Those are probably all the facts necessary for most people to conclude beyond a reasonable doubt that Ross’s actions created a “plain and strong likelihood” that her dog would be harmed. See Dauphine v. United States, 73 A.3d 1029, 1033 (D.C. 2013) (quoting Russell v. United States, 65 A.3d 1172, 1184 (D.C. 2013)). My colleagues conclude otherwise, ruling that no rational factfinder could draw that conclusion. I disagree and dissent.

Sufficient Evidence

There was considerable record evidence supporting the trial court’s guilty verdict for misdemeanor cruelty to animals, beyond the barest facts noted above (which alone strike me as sufficient to support the guilty verdict). All of the relevant witnesses and responders, other than Ross herself, recognized that leaving a dog in a car on a blazing hot summer day—even with the windows cracked a few inches, and even if only for a far shorter period than it turned out to be—required an immediate response to avoid harm to the dog. A bystander, Zachary Vasile, was the first on the scene. He heard the dog’s “very loud” and “incessant barking,” explaining that—aside from it being “very hot” that day—it was “[t]he constantness of” the barking that “gave [him] concern.” Vasile understood that “this was a potentially dangerous situation for the dog.” He spent several minutes trying to track down the dog’s owner, then tried but failed to open the car’s doors (risking at least a nasty confrontation on the owner’s return). When that didn’t work, he called 311.

Hot cars and common sense

And it is common knowledge that parked cars can quickly get far hotter than the ambient temperatures outside (just as Torres testified)—most people have opened a car door on a hot day to a blast of heat and a scorching steering wheel and belt buckles.1 It is similarly common knowledge that dogs with “dense” fur like Cinnamon are particularly vulnerable to heat. While I’m quite confident that any human would suffer if left in a car for an hour and twenty minutes in ninety-eight degree heat, if you put a dense fur coat on them, my confidence skyrockets.

1As a born-and-raised Arizonan, I’ve surely had more frequent, vivid, and painful experiences with this phenomenon than most people

AI 

Let me nonetheless briefly scrutinize what I have claimed to be common knowledge, using both the relevant facts of this case and those presented in Jordan. I have asked ChatGPT, “Is it harmful to leave a dog in a car, with the windows down a few inches, for an hour and twenty minutes when it’s 98 degrees outside?” Its response, with my emphasis added, follows:

Yes, leaving a dog in a car under these conditions is very harmful. Even with the windows slightly open, the temperature inside a car can quickly rise to dangerous levels. In fact, on a 98-degree day, the temperature inside a car can escalate to over 120°F (49°C) in just a matter of minutes, which can cause heatstroke or even be fatal to a dog.

Dogs can suffer from heatstroke when they are exposed to extreme temperatures, as they do not regulate heat as efficiently as humans. They rely on panting to cool down, but this becomes less effective in a hot, confined space like a car. Symptoms of heatstroke in dogs include excessive panting, drooling, weakness, vomiting, and even collapse.

For your dog’s safety and well-being, it’s important never to leave them in a hot car, even with the windows cracked. If you need to run errands or be in a hot environment, it’s best to leave your dog at home in a cooler, safer space.

Now compare that unequivocal affirmative answer to how it responds to the facts of Jordan. I asked ChatGPT, “Is it harmful to leave a German shepherd outside in 25 degree temperature for five hours?” The first paragraph of its far lengthier response—which boils down to “it depends”—was:

Whether it’s harmful to leave a German Shepherd outside in 25°F (4°C) for five hours depends on several factors, including the dog’s health, coat condition, and access to proper shelter. German Shepherds are a hardy breed with a double coat that provides some insulation, but prolonged exposure to cold can still be harmful. Here’s what to consider:

It then details five relevant factors that should be taken into consideration, including the dog’s “health and age,” its “coat condition,” its “activity level,” its access to shelter, and the “duration” (despite five hours being baked into the prompt.

If I were to reframe ChatGPT’s answers in terms of the relevant legal standards, its first answer reads to me as something like, “Yes, beyond a reasonable doubt, leaving a dog in a car for an hour and twenty minutes in 98-degree temperature is very likely to cause it harm.” Its second answer, concerning Jordan, is “you could not say beyond a reasonable doubt that leaving a German shepherd outside in 25 degree temperature is likely to cause it harm, though it possibly could depending on a host of factors.” I think that aligns perfectly with what my own common sense tells me—and at least a factfinder would not be irrational in tracking those lines of thought—so that we rightly reversed the conviction in Jordan, while Ross’s conviction should be affirmed. But I digress.

Dissent’s conclusion

So whatever one thinks about what I have claimed to be common knowledge above, the actual and uncontradicted evidence in this case—taken in the light most favorable to the verdict—was that the temperature inside of Ross’s car would have been much hotter than the 98 degrees outside. And if firefighters did not rescue Cinnamon from the car when they did, “it could definitely have been fatal.” That is more than a sufficient evidentiary basis for a factfinder to rationally conclude that Ross’s actions created a “plain and strong likelihood” that Cinnamon would be harmed, and so I dissent. I would affirm Ross’s conviction.

(Mike Frisch)