An Examination of State Dog Impound Laws
- Rebecca F. Wisch
- Animal Legal & Historical Center
- Publish Date: 2003
- Place of Publication: Michigan State University College of Law
There seems no greater exercise of police power in relation to dogs than a government’s ability to summarily seize or destroy dogs. In fact, many states provide that an animal control officer or other appointed agent not only has a right to destroy offending dogs (usually those at large or deemed dangerous), but also a duty to do so. Moreover, owners have little legal recourse against such action. Most of the original legislation in this area dates back at least a century, rooted in real fears of marauding vicious dogs or the spread of rabies. In any event, nearly all exercises of municipal power to restrain, regulate, and impound loose or vicious dogs are upheld as valid. (For more on police powers, see the Detailed Discussion of State and Local Dog Laws).
State and municipal laws provide for the seizure of dogs in three general categories: the impoundment of loose or unlicensed dogs; the seizure of dangerous dogs; and the seizure of dogs that either appear rabid or as part of a rabies quarantine effort. This paper will examine specific state laws with respect to dogs at large, dogs found to be chasing livestock, and dogs seized as part of a quarantine effort. While it is recognized that the impetus behind broad seizure laws is often the threat of a dangerous dog, this paper will not delve into dangerous dog laws (a paper examining dangerous dog laws will soon be available at the
II. Exercise of General Police Power to Impound or Kill Dogs
As noted in the
Counties, by resolution of their respective legislative bodies, may license and regulate dogs and cats, establish and operate shelters and other animal control facilities, and regulate, capture, impound and dispose of stray dogs, stray cats and other stray animals.
Generally, this ability given to local governments to control dogs is broad. State statutes often provide that the power to license, tax, and regulate loose dogs is vested in municipal governments. See, AR 14-54-1102; OK ST T. 4 § 43. In any event, few challenges to ordinances or statutes requiring dogs wear licenses or be properly restrained survive judicial scrutiny. Instead, courts give broad deference to a government’s inherent police power in this arena. This is especially true with regard to loose dogs or dogs at large.
Clearly, the most common reason a dog is impounded is because it is found running loose with no license tags. As dogs are viewed as personal property in every state, a dog that bears no tag of owner identification may be considered by statute to be abandoned property. 4 Am. Jur. 2d Animals § 58. This ability to then seize “abandoned” dogs extends to the summary disposition of such property, depending on the time frame given under statute. As a consequence “. . . a state may by statute provide that impounded dogs and cats, which fall within the meaning of abandoned property, may be turned over to specified institutions for medical experimentation and research . . . since the police power of a state extends to preventing waste of resources . . .” Id. In fact, this ability of a municipality to sell or give pets to research facilities was upheld as a valid exercise of police power in Kovar v. City of Cleveland, 102 N.E.2d 472 (Ohio App. 1951).
In Kovar, Petitioner LaVeda Kovar and others sought to enjoin the City of Cleveland from disposing of dogs located in the city dog pound by giving or selling them to hospitals or laboratories for experimental and research purposes. The Ohio Court of Appeals held that the City of
In many states, local authorities are given this near complete discretion to adopt strict dog seizure laws. In
The board of county commissioners may also regulate and provide for taxing the owners and harborers of dogs, and authorize the humane killing or disposal of dogs, found at large, contrary to any ordinance regulating the same.
OK ST T. 4 § 43. In fact, this ability to enact ordinances related to dogs may not be discretionary for a particular municipality.
But what defines a loose dog, or dog-at-large? A dog can be deemed “running-at-large” if it is found not in the immediate control of a capable person or in a suitable enclosure on its owner’s property. Further, some states define loose dogs at those that are not wearing visible dog tags on a collar. Most states distinguish between loose dogs with a visible collar and dog tags and those dogs that are unlicensed or uncollared.
II. In this section, "at large" means off the premises of the owner or keeper and not under the control of any person by means of personal presence and attention as will reasonably control the conduct of such dog, unless accompanied by the owner or custodian.
III. Any authorized person may seize, impound or restrain any dog in violation of this section and deliver said dog to a person or shelter authorized to board dogs. Such dogs shall be handled as strays or abandoned dogs pursuant to applicable laws.
(a) any dog which is not identified and which is not on the owner's premises; and
(b) any dog which is not licensed, whether on or off the owner's premises.
(c) any licensed dog which is not in the control of its owner or custodian or not on the premises of the dog's owner or custodian, if there is probable cause to believe the dog is a dangerous dog.
(d) any dog which poses an immediate threat to the public safety.
Promptly upon seizure the dog control officer shall commence a proceeding as provided for in subdivision four of section one hundred twenty-one of this article.
NY AGRI & MKTS § 118. Thus, according to subsection b above, any unlicensed dog is subject to seizure. Similarly,
. . .[E]very officer shall seize any unlicensed dog found running at large or found upon any public highway, street, alley, court, place, square, or grounds, or upon any unfenced lot, or not within a sufficient enclosure, whether in the immediate presence of the owner or otherwise, and confine it in a pound or any suitable enclosure for a period of forty-eight hours, during which time it shall be subject to redemption by its owner by payment of the license due. . .
(1) Peace officers, dog wardens, or animal control officers shall seize and impound any dog which does not bear a proper license tag or other legible identification which is found running at large, but if an officer, dog warden, or animal control officer, after diligent effort to do so, should fail to seize the dog, it shall then become his duty to destroy the dog by any reasonable and humane means.
The importance of whether dogs are wearing license tags or collars when found at large was illustrated by a case from Vermont. This case apparently held that when dogs are wearing collars when found at large, a court cannot grant a directed verdict for the constable who killed them. Vosburgh v. Kimball, 285 A.2d 766 (
The legal status of a loose dog may differ by statute. In
(b) Any dog found running at large without the proper license tag attached in accordance with the provisions of this subtitle is a nuisance and is subject to seizure, detention and destruction. The dog warden or his duly authorized deputies, whenever possible, shall seize and impound any dog found running at large without the proper license tag attached. When the dog warden or his duly authorized deputies are not able to catch a dog running at large without a license tag, they may shoot or otherwise kill the dog.
MD CODE, Art. 24, § 11-510(b). The nuisance angle allows the appropriate authorities to act in an expeditious manner by statute.
A loose dog may also pose a financial risk to owners. While most states impose some nominal fine to retrieve an impounded dog,
[Dogs] may be confiscated by a dog officer and destroyed in an expeditious and humane manner after the expiration of a five (5) day waiting period exclusive of Sundays and holidays which shall not include any day or part thereof that the public pound is not open for a specified period of time, not to be less than one half (1/2) the normal hours of business, for the purpose of reclaiming any such dog by its rightful owner. In addition, the owner or keeper shall pay a five hundred fifty dollar ($550) fine.
Any person may seize, impound, or restrain any unlicensed dog which the person may find running at large. The fact that a dog is without a license attached to a collar shall be presumptive evidence that the dog is unlicensed. The sheriff and sheriff's deputies, any marshal or constable or other police officer shall seize, impound or restrain any dog for which no license has been issued and for which one is required. Any officer who shall seize, restrain, impound, or kill any dog found in any place without a license. . .
Many states treat dogs at large as stray or abandoned dogs. Dogs that are impounded and not claimed within a specified amount of time are generally regarded as abandoned, regardless of evidence of ownership, and may be disposed of according to state law. ME ST T. 7 § 3912; DC CODE § 8-1805(f).
(a) Any dog off the premises of the owner or of the person keeping or harboring said dog which said official or his agent or agents have reason to believe is a stray dog;
(b) Any dog off the premises of the owner or of the person keeping or harboring said dog without a current registration tag on his collar;
(c) Any female dog in season off the premises of the owner or of the person keeping or harboring said dog;
(d) Any dog or other animal which is suspected to be rabid;
(e) Any dog or other animal off the premises of the owner reported to, or observed by, a certified animal control officer to be ill, injured or creating a threat to public health, safety or welfare, or otherwise interfering with the enjoyment of property.
In states with a hunting tradition, loose dogs are spared if engaged in hunting activities.
[a]ny peace officer, dog warden, or animal control officer may seize or destroy any dog found running at large between the hours of sunset and sunrise . . . shall be under a duty to make a fair and reasonable effort to determine whether any dog found at large between sunset and sunrise is a hound or other hunting dog which has become lost temporarily from a pack or wandered from immediate control of its owner. . .
Finally, a dog may be subject to impoundment for failure of its owner to pay a license tax, or head tax. In
It shall be the duty of the county assessor and his deputies of each county within the State, at the time they are making assessment of the personal property within such county, to assess and collect a head tax of one dollar on each male or spayed female dog and of two dollars on each unspayed female dog; Should an owner fail to pay the tax, the dog may be impounded. If after 15 days the owner does not pay the tax, the sheriff may offer the dog for sale. If he fails to sell the dog, the Should the sheriff fail to sell the dog so impounded within the time specified herein, he shall kill such dog and dispose of its body.
Sec. 14. On and after the fifteenth day of June of each year every dog on which the tax has not been paid as herein provided, is hereby declared to be a public nuisance and it shall be the duty of the sheriff of every county, the marshal of every town, the police officer of every city, the constable of every township, and the members of the state police force or game wardens to cause such dogs to be captured and placed into city, town or county dog pounds. Such dogs may be reclaimed by their owners upon exhibition of evidence that the tax on such has been paid and upon payment of a reasonable fee not to exceed twenty-five cents ($.25) per day. In the event that the dogs impounded as provided in this chapter shall not be reclaimed within twenty (20) days, they shall be sold or destroyed as the impounding officials may decide.
This was the situation in the case of Vukic v. Brunelle, 609 A.2d 938 (R.I., 1992). In that case, the court held that the duty to kill a loose dog given through state statute overrode a local ordinance's impoundment scheme. In Vukic, owners of a Great Dane dog and her pups filed suit against the officer who killed the dogs. The dogs escaped their kennel and traveled to a neighbors’ residence, who were apparently frightened by the dogs after the dogs would not move away from their rabbit cages. The neighbors then called constable/special police officer Roy Brunelle to remove the dogs from their property. The officer observed that the dogs were uncollared and unlicensed, contrary to local and state law. The testimony was contradictory whether the dogs acted aggressively toward the officer. Ultimately, however, the officer shot the dogs, two of which were immediately killed.
The Vukics filed suit in the Superior Court against the town of
On appeal, the defendants argued that the trial justice erred in failing to grant defendants' pretrial motion to dismiss the action in light of state legislation that required a dog officer destroy any dog found at large and not licensed and collared according to law. General Laws 1956 (1976 Reenactment) § 4-13-12. The court concluded that the
The court rejected the plaintiff's argument that the provisions of § 4-13-12 requiring that dog officers destroy all unlicensed dogs found at large was "absurd, unjust, and ultimately archaic in light of the changes in Rhode Island since the enactment of the statute in 1896."
IV. State Notice Requirements
Consistent with due process requirements, most state statutes mandate a notice scheme after a dog is impounded. Notice statutes typically provide that the owner must be notified in writing, usually by certified mail. These requirements generally give the dog owners between five and seven days to reclaim their dogs before the dogs are placed for adoption, sold to for scientific experimentation, or humanely destroyed. The
If any animal so seized wears a collar or harness having inscribed thereon or attached thereto the name and address of any person or a registration tag, or the owner or the person keeping or harboring said animal is known, any person authorized by the governing body shall forthwith serve on the person whose address is given on the collar, or on the owner or the person keeping or harboring said animal, if known, a notice in writing stating that the animal has been seized and will be liable to be offered for adoption or destroyed if not claimed within seven days after the service of the notice.
NJ ST 4:19-15.16. In
6. Promptly upon seizure of any identified dog, the owner of record of such dog shall be notified personally or by certified mail, return receipt requested, of the facts of seizure and the procedure for redemption. If notification is personally given, such dog shall be held for a period of seven days after day of notice, during which period the dog may be redeemed by the owner. If such notification is made by mail, such dog shall be held for a period of nine days from the date of mailing, during which period the dog may be redeemed by the owner. In either case, the owner may redeem such dog upon payment of the impoundment fees prescribed by subdivision four of this section and by producing proof that the dog has been licensed.
NY AGRI & MKTS § 118. Again, a state may vary requirements depending on whether a dog is licensed or unlicensed. Notice may appear in the form of a publication where dogs are found without owner identification. This, in turn, affects the time period under which a dog must be retained by a facility.
A few states provide alternate notice schemes, to address situations where the owner address is unavailable. In
The officer to whom the dog is delivered shall, without delay, notify the owner, personally or through the United States mail, if such owner be known to the officer or can be ascertained with reasonable effort, but if the owner be unknown or cannot be ascertained, then the officer shall post written notice in three public places in the officer's town, giving a description of the dog, stating where it is impounded and the conditions for its release. If, after five days, the owner does not claim the dog the officer shall dispose of the dog in a proper and humane manner.
Any animal shelter, public or private, which takes in stray dogs and does not have regular hours for public access, shall post semimonthly either in a local newspaper or the newspaper with the highest circulation in the county, the shelter location, hours of operation, the period that impounded dogs shall be held, and a contact number.
The warden shall give immediate notice by certified mail to the owner, keeper, or harborer of the dog seized and impounded by him, if the owner, keeper, or harborer can be determined from the current year's registration list maintained by the warden and the county auditor of the county where the dog is registered, that the dog has been impounded and that, unless the dog is redeemed within fourteen days of the date of the notice, it may thereafter be sold or destroyed according to law. If the owner, keeper, or harborer cannot be determined from the current year's registration list maintained by the warden and the county auditor of the county where the dog is registered, the officer shall post a notice in the pound or animal shelter both describing the dog and place where seized and advising the unknown owner that, unless the dog is redeemed within three days, it may thereafter be sold or destroyed according to law.
As dogs are considered property in all states, the notice period gives time for title to this now abandoned property to pass the facility holding the dog so that it may dispose of the dog.
II. The mayor or aldermen or selectmen may issue their warrant to one or more of the police officers of such city or town who shall, after 24 hours from the publication of the notice required under paragraph I, impound all dogs found running at large contrary to such order. The dog owner shall be notified, if the owner's identity is known. Any dog impounded in accordance with this section who has been conclusively found to be rabid shall be destroyed in the most humane manner possible. After 7 consecutive days of impoundment, title of a dog shall pass to the facility holding the dog, unless the owner has claimed such dog. The owner of the dog shall be responsible for all costs associated with the impoundment of the dog under this section.
NH Stat. 466:29. Such a notice scheme reflects the property status of dogs. It also allows facilities to legally dispose of unclaimed animals.
Notice statutes may be vague as to the method of providing notice to the owner.
Notice provisions may also apply outside of government contracted animal control agencies. In
A. Any individual who finds a companion animal and (i) provides care or safekeeping, or (ii) retains a companion animal in such a manner as to control its activities shall, within 48 hours:
1. Make a reasonable attempt to notify the owner of the companion animal, if the owner can be ascertained from any tag, license, collar, tattoo, or other form of identification or markings, or if the owner of the animal is otherwise known to the individual; and
2. Notify the pound that serves the locality where the companion animal was found and provide to the pound contact information including at least a name and a contact telephone number, a description of the animal including information from any tag, license, collar, tattoo, or other identification or markings, and the location where the companion animal was found.
States generally provide a period after which a dog is impounded when the rightful owner can reclaim the dog. This period of time also gives local authorities time to notify the dog owner. While this period varies from state to state, most provide for a five to seven day period of impoundment. After this time has passed, most states are either authorized to place the animal for adoption, sell the animal, donate the animal for scientific research, or euthanize the animal.
An examination of two statutes illustrates the differences in both time requirements and disposition of unclaimed pets.
The time period for retention of impounded dogs may differ depending on whether the dog is identified by a dog tag. In
Unless claimed by its keeper, a dog shall be impounded for at least three days if the dog is without a license or identification tag and for at least five days if it has a license or identification tag. A reasonable effort shall be made to notify the keeper of a dog before the dog is removed from impoundment.
8. The redemption periods set forth above in this section notwithstanding, any municipality may establish the duration of such periods by local law or ordinance, provided that no such period shall be less than three days, except that where notice to the owner is given by mail, no such period shall be less than seven days.
(d) Any dog seized and impounded shall be held for its owner for a period of 72 hours. During this period any dog seized shall be released to the owner, or his duly authorized representative, upon satisfactory proof of ownership, tender of a fee in whatever amount the County Commissioners determine for the costs of seizure and impounding, and upon presentation of the license for the dog.
(e) Any owner who does not redeem his dog within 72 hours forfeits all rights of ownership and the dog shall be the property of
(f) Any dog seized and not redeemed within 120 hours from time of its seizure may be killed by the dog warden or one of his duly authorized deputies. If it is killed, it shall be killed in the most humane manner possible.
MD CODE, Art. 24, § 11-510. In contrast,
Animals that are abandoned at private facilities may be treated differently than stray animals. In
(1) Any animal which suffers abandonment for a period of ten days may be sold or placed in the custody of the nearest humane society or county dog pound if the animal is not picked up within seven days after mailing a notification, by certified mail, to the last known address of the person placing the animal in the veterinarian's custody. If no humane society or dog pound is located in the county, the animal may be disposed of in a humane manner.
(1) Each peace officer shall:
(2) (a) Each municipal or county animal control officer shall hold any unidentified or unclaimed stray dog or stray cat in safe and humane custody for a minimum of three working days after the time of impound prior to making any final disposition of the animal, including:
(i) placement in an adoptive home or other transfer of the animal, which shall be in compliance with Title 10, Chapter 17, Municipal Animal Shelter Pet Sterilization Act, or Title 17, Chapter 42, County Animal Shelter Pet Sterilization Act; or
(b) An unidentified or unclaimed stray dog or stray cat may be euthanized prior to the completion of the three working day minimum holding period to prevent unnecessary suffering due to serious injury or disease, if the euthanasia is in compliance with written established agency or department policies and procedures, and with any local ordinances allowing the destruction.
Notice is one but element mandated by the due process clause of the Constitution. Denial of due process for animal impoundment and destruction often centers on a lack of notice or opportunity to be heard. Unfortunately, the trend in this area of law is to deny such civil claims against city employees, usually law or animal enforcement officers, raised under 42 U.S.C.A. § 1983. Essentially, plaintiffs often allege that the destruction of their dogs by law enforcement officials acting under color of law (in other words, carrying out their perceived duties in accordance with a state law or local ordinance), caused a deprivation of any rights, privileges, or immunities secured by the Constitution and laws. As a result, a plaintiff seeks damages for injury sustained by the act. (For a more detailed discussion of Section 1983 actions, see Police Shooting Dogs Topic Area in the Web Center).
States may immunize dog control officers by statute.
11. No liability in damages or otherwise shall be incurred on account of the seizure, euthanization or adoption of any dog pursuant to the provisions of this article.
NY AGRI & MKTS § 118. In most instances, however, the authority to summarily seize or even kill loose dogs stems from the general grant of police power to a local government. The extent to which due process applies appears to depend on judicial interpretation.
In one of the earliest cases to consider a due process claim for the impounding of a dog, Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.Civ.App. 1965), the court found that municipalities have broad authority to regulate dogs under its police power. In Jenkins, the plaintiffs' dog was picked up by an employee of the City of
The court first observed that the City's Home Rule Charter authorizes enactment of "all reasonable ordinances that are not repugnant to the Constitution and Laws of the
Consistent with due process, a state, or municipal corporation under its delegated power in such respect, may make provision for the summary destruction of dogs which are kept or running at large in violation of law, and such regulations, no matter how stringent in character or how summary the proceedings, are entirely within legislative power and are free from constitutional objection, notwithstanding the property of the owner is destroyed without notice or hearing in the execution of the law. Moreover, the overwhelming majority of courts view statutes and ordinances providing for summary disposal or destruction of dogs as valid exercises of the police power; and though dogs are property, such ordinances or statutes are not a denial of due process, even though they do not provide for notice and hearing.
Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.Civ.App. 1965), (internal citations omitted). After reiterating the statements of broad police power a municipality enjoys, the court simply concluded that “the complained of provisions of the Ordinance valid exercises of the police power, and Constitutional.”
While the court’s analysis was lacking with respect to why a municipality is empowered with such a broad police power in relation to dogs, the holding did underscore the judicial deference municipalities are afforded. This reasoning was later followed in other impoundment cases.
Again, in City of Water Valley v. Trusty, 343 So.2d 471 (
This Court held in Julienne v. City of
'It is held with great unanimity by the courts that regulations of the most stringent character, and the most summary proceedings for the destruction of these animals kept contrary to such regulations, are entirely within legislative power, and free from constitutional objection, though the property of the owner is destroyed without notice or hearing, in the execution of the law.' 69
Fortunately, this trend of unsupported judicial reasoning appears to be giving way to recognition of owners’ property interests. Courts now agree that deprivation of property, especially involving companion animals, mandates due process unless exigent circumstances exempt the requirement. One court has held that an ordinance that provides only a gratuitous notice was insufficient. Phillips v. San Luis Obispo County, et al, 228 Cal.Rptr. 101 (Cal.App. 2 Dist., 1986). In Phillips the court noted that principles of due process apply to dogs, as de minimus property.
The court in Phillips did observe that a summary seizure of dogs must be allowed when the dog poses a threat to public safety (e.g., a vicious or rabid dog). However, the court went on to note “the constitutionality of the ordinance or statute justifying seizure rests upon its provision for a prompt postseizure hearing.”
Cases arguing the improper impounding of companion animals generally center around procedural due process; that is, were the owners provided with adequate notice that gave them a meaningful opportunity to be heard. See, Mathews v. Eldridge, 424
Three factors are generally considered when due process is implicated: (1) the private interest involved, (2) the risk that the current procedures will erroneously deprive a party of that interest, and (3) the governmental interest involved. Mathews, 424
Here, first, the private interest involved is the owners' interest in keeping their pets. This is greater than a mere economic interest, for pets are not fungible. So the private interest at stake is great. Taking the third consideration next, the governmental interest is the burden of keeping these exotic animals in impound while awaiting a hearing.
Rhoades v. City of
Outside of the seizure of vicious dogs, it is evident that most dogs summarily seized in local jurisdictions are generally at large or unlicensed. Under these statutes, notice varies from state to state, but generally state statutes require at least five days notice. Since the pets’ destruction can be avoided by the owners simply reclaiming their dogs, due process is likely sufficed in most circumstances. Further, courts give great discretion to the action taken by animal control officers where the statutory scheme empowers these officers to exercise judgment in dealing with loose dogs. This situation was exemplified in Ivey v. Hamlin, 2002 WL 1254444 (Not Reported in S.W.3d), (Tenn.Ct.App.,2002). In Ivey, the plaintiff alleged that a peace officer shot his dog after repeated complaints that the dog was loose, uncollared, and was “terrorizing” neighbors. On the third occasion that the officer came to the plaintiff’s house, the defendant animal control officer told plaintiff and his family to go inside the house, as he was going to shoot the dog. He then killed the dog. The court observed that the statutory scheme provided by Tenn.Code Ann. §§ 68-8-104 et seq. allowed official to seize any dog running at large to be placed in a pound where a dog pound is available. The county in question (
The statutory scheme required him to seize the collarless dog and confine it; he did not do so for the reason that the County had no impound facilities and he insists that this asserted "Catch-22" situation justified its summary execution . . .
Due process during dog impoundment concerns not just the actual taking of the dog, but also the manner in which the impoundment was conducted. Indeed, owners’ rights to be free from unreasonable seizures may also be implicated.
The issue has arisen as whether Fourth Amendment claims against unreasonable search and seizures extend to the seizure of dogs for violation of state or municipal code. Essentially, when can an animal control officer or police officer empowered with animal control functions enter an individual's home without a warrant to seize a dog for violation of a leash law or loose dog ordinance? The
Consequently, a couple of states have addressed this claim by statute. In
Any officer or agent authorized or empowered to perform any duty under this act is hereby authorized to go upon any premises to seize for impounding any dog or dogs which he may lawfully seize and impound when such officer is in immediate pursuit of such dog or dogs, except upon the premises of the owner of the dog if said owner is present and forbids the same.
NJ 4:19-15.17. Thus, the owner is protected from this unreasonable seizure of his or her property, even where potential exigent circumstances exist. Further, a
Such notice shall state the following: that the dog has been impounded, where the dog is being held, the name, address, and telephone number of the agency or person to be contacted regarding release of the dog, and an indication of the ultimate disposition of the dog if no action to regain it is taken within a specified period of time by its owner or by the person who has a right to control the dog.
But what about the well-known exceptions to the warrant requirement under the Fourth Amendment? The case of Conway v. Pasadena Humane Society, 52 Cal.Rptr.2d 777 (Cal.App. 2 Dist.,1996), addressed this issue of whether pursuit of a loose dog constitutes “exigent circumstances” for purposes of the Fourth Amendment. Specifically, the court considered whether animal control officers can lawfully enter a home, without a warrant or consent by the owners, to seize and impound the homeowner's dog for violation of a leash law. The court held that the Fourth Amendment precludes such conduct.
The gravamen of the action was a federal civil rights claim (42 U.S.C. § 1983) alleging that defendants violated the
Even if exigent circumstances permitted the police to enter the
Interestingly, dogs impounded because they are loose often receive less consideration by the courts in terms of due process than do dogs that are impounded because they are deemed dangerous. It is ironic that the owner of the least offending dog is given little notice or opportunity to be heard before execution. However, it can be argued that the administrative impossibility of given notice to unlicensed dogs surely justifies the need for rapid action, and limited resources to animal control facilities cannot justify longer stays for stray dogs. While loose dogs may be subject to reasonable impoundment periods under which an owner can reclaim them, dogs impounded for chasing or worrying livestock instead often face a harsher disposition.
Nearly all states provide that dogs may be destroyed pursuant to state statute by authorized individuals. Generally, this ability is extended only to humane or law enforcement officers under proscribed circumstances. Some statutes do allow different categories of people the authority to destroy offending dogs (e.g., landowners, public officials, game officers, ranchers, etc.). State law must be examined very carefully in each state to determine who has the authority and under what circumstances. One of the other primary reasons dogs are summarily destroyed is that they are found injuring or chasing livestock. This stems from the agricultural legacy in many states and the real danger livestock faced from loose dogs. While still relevant, many antiquated statutes mandate the destruction of dogs with only a summary hearing provided prior to destruction. Further, these statutes have been criticized as elevating the status of livestock above humans, as many laws provide for summary destruction of dogs that chase livestock but not for dogs that have bitten humans. The
. . . A person may humanely destroy a dog in self defense, or which is found chasing, worrying, wounding or destroying any sheep, lamb, poultry or domestic animal.
NJ § 4:19-9. In
Every person, firm, copartnership, corporation or company owning any dog, which to his knowledge has killed sheep or other livestock, shall exterminate and destroy the dog.
WY ST § 11-31-106. The statute fails to explain the penalty for failure to comply with the statute.
In states where the hunting industry also plays a major role in the state economy dogs may face execution or impound for chasing game. In
A law enforcement officer may destroy any dog found pursuing, injuring or killing any big game animal on public lands.
In fact, “[a] landowner or tenant may destroy any dog that pursues, injures or kills any big game animal on lands owned or controlled by that owner or tenant without incurring any liability.”
If the director determines that a severe problem exists in an area of the state because deer and elk are being pursued, harassed, attacked or killed by dogs, the director may declare by emergency rule that an emergency exists and specify the area where it is lawful for fish and wildlife officers to take into custody or destroy the dogs if necessary. Fish and wildlife officers who take into custody or destroy a dog pursuant to this section are immune from civil or criminal liability arising from their actions.
No person shall permit his dog to hunt or chase deer. A conservation officer shall take into possession any dog known to have hunted or chased deer and the director shall advertise that such dog is in his possession, giving a description of the dog and stating the circumstances under which it was taken. Such notice shall be published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this Code, and the publication area for such publication shall be the county. He shall hold the dog for a period of ten days after the date of the publication. If, within ten days, the owner does not claim the dog, the director shall destroy it. . . A conservation officer, or any officer or employee of the director authorized to enforce the provisions of this section, after a bona fide but unsuccessful effort to capture dogs detected chasing or pursuing deer, may kill such dogs.
One case has suggested that, at least under
In examining the relevant statute, the court observed that the words "chases, worries, injuries, or kills" are all in the present tense, indicating a legislative intent that, for the killing of the dog to be permitted, the dog must be killed while in the act of chasing, worrying, injuring, or killing.
A dog that chases, worries, injures, or kills a person, sheep, lamb, goat, kid, domestic fowl, or domestic animal except a cat or another dog can be killed at any time or place. If, in attempting to kill such dog running at large, a person wounds it, he is not liable to prosecution under the penal laws which punish cruelty to animals.
While the court observed that there was no evidence of “hot pursuit” in this case, it also declined to decide whether a seizure after a hot pursuit would alter its reasoning under the statute.
Other states, especially those with an agricultural economy, go further in allowing the immediate impounding of dogs seen chasing livestock. Indeed, in
If a dog chases a person,
An examination of the relevant
(1) In a county with a dog control program, upon finding a dog engaged in killing, wounding, injuring or chasing livestock or upon receipt from a complainant of evidence that a dog has been so engaged, the dog control officer or other law enforcement officer shall impound the dog.
One case that applied this statute illustrated this inflexible result. In Roach v. Jackson County, 949 P.2d 1227, review denied 326 Or. 389, 952 P.2d 62 (1997), the court held that under ORS 609.155(3), once it was determined that dog chased horse in horse owner's pasture, it was mandatory that dog be killed in humane manner. Thus, the county board did not have discretion not to destroy dog.
The relevant statute, ORS § 609.155(3) provides, in part:
[T]he county governing body shall determine whether the dog has been engaged in killing, wounding, injuring or chasing livestock. If the county governing body determines that the dog has been so engaged, the dog shall be killed in a humane manner.
ORS § 609.155(3). In Roach, the plaintiff asserted that the statute required evidence of chasing with an intent to kill the horse in question. In examining the statute, the court disagreed with plaintiff's argument that there must be proof that the horse was harmed. The court noted that the operative words in ORS § 609.155(3)(a) have discrete meanings.
A dog need not kill or wound livestock for the statute to apply. In context, the word "injuring" connotes a situation where there is no physical contact between the dog and the livestock, but the livestock is injured as a result of the dog's actions. Similarly, the statute is implicated when the dog merely chases livestock without injury or wounding occurring. It is apparent that the legislature recognized the potential of harm to livestock by a dog merely chasing livestock and sought to prevent that potential harm.
[footnotes omitted]. Roach, supra. The court also disagreed with plaintiff’s interpretation that the authority to destroy his dog under ORS § 609.155(3)(a) is discretionary and that the Board did not exercise its discretion by considering the option of releasing the dog to him. In fact, the court stated that the language of ORS § 609.155(3)(a) is mandatory; “it provides that the county governing body "shall" determine whether the dog has been engaged in the prohibited acts and if it determines that the dog has been so engaged, "the dog shall be killed in a humane manner." ORS § 609.155(3)(a).
(1) Prior to making a determination whether a dog has killed, wounded, injured or chased livestock, a county shall provide an opportunity for the dog owner to receive a hearing. The county shall send notice of the opportunity to request a hearing in a manner that is reasonably calculated, under all the circumstances, to apprise the dog owner of the specific behavior and incident alleged and the possible penalties, and to provide the dog owner with a fair opportunity for making the hearing request.
(2) A dog owner must cause a hearing request to be delivered to the county not later than the 14th day following the sending of notice under subsection (1) of this section. If a dog owner does not make a timely request for a hearing, the dog owner is conclusively presumed to have admitted the matter alleged and the county may immediately take action under ORS 609.162 and 609.163. The county shall send notice of its determination in the manner provided under ORS 609.158 (4).
It is interesting that the status “human’s best friend” becomes imperiled when livestock or commercially viable state game interests suffers. Indeed, in
(a) A dog or coyote that is attacking, is about to attack, or has recently attacked livestock, domestic animals, or fowls may be killed by:
(1) any person witnessing the attack; or
(2) the attacked animal's owner or a person acting on behalf of the owner if the owner or person has knowledge of the attack.
(b) A person who kills a dog or coyote as provided by this section is not liable for damages to the owner, keeper, or person in control of the dog or coyote.
Much of the broad police power given to municipalities to seize loose dogs stems from a historic fear of rabies. Part of the reason states give broad latitude to seize unlicensed dogs is because it is difficult to ascertain whether dogs have been inoculated against rabies.
Any police officer or State dog warden may humanely kill any dog running at large in a rabies quarantined area without any liability for damages for such killing.
Many states follow reasonable notice requirements for animals impounded due to lack of rabies inoculation.
All dogs and cats which have been impounded for lack of rabies immunization in accordance with the provisions of this chapter, due notice of which shall have been given to the owner as provided in Section 3-7A-7, may be humanely destroyed and disposed of when not redeemed by the owner within seven days.
(4) Quarantine or sacrifice of an animal suspected of biting a person or being infected or exposed to rabies.
(a) Quarantine or sacrifice of dog or cat. An officer shall order a dog or cat quarantined if the officer has reason to believe that the animal bit a person, is infected with rabies or has been in contact with a rabid animal. If a quarantine cannot be imposed because the dog or cat cannot be captured, the officer may kill the animal. The officer may kill a dog or cat only as a last resort or if the owner agrees. The officer shall attempt to kill the animal in a humane manner and in a manner which avoids damage to the animal's head.
Immediate measures are also allowed by statute in
One case suggests that the reason behind an impoundment ordinance may be to test a dangerous dog for rabies prior to destruction. Jones By and Through Jones v. City of
Municipalities are afforded discretion in enacting police power measures because of the public health and safety concern unregulated animals may cause. In a case that challenged an ordinance’s application to cats running at large since cats were not expressly mentioned in the ordinance, the court found that the ability to regulate animals at large was based on public health requirements.
. . . we believe the counties clearly have the express power to (1) impound and dispose of stray animals; and (2) the implied authority to further control and regulate dogs, cats and other animals pursuant to the provisions of the
Police power actions with respect to dogs are often swift and severe. Municipalities are typically extended broad discretion by the state to enact ordinances related to dogs, including those that call for impoundment and execution. Much of this power stems from a historical concern about loose dogs and their propensity to contract the rabies virus. Further, loose dogs were often a concern to livestock interests. Ironically, while the social climate has changed and the threat of a rabid dog has diminished, local dog laws appear to have increased in number and complexity. Whether this reflects a true danger due to the possession of "dangerous" breeds of dogs, a societal intolerance for any sort of interference, or a general trend of litigiousness, the fact remains that dogs are subject to even more regulations. Many laws have evolved to allow a greater owner participation in the legal process rather than justice meted through the end of a gun. Laws must still meet minimal constitutional standards of due process as many courts are beginning to recognize the enhanced property status of dogs. What exactly constitutes due process in impoundment and destruction cases is not exactly clear. At a minimum, courts seem willing to extend notice and a meaningful opportunity to contest dog impoundment and execution claims. There are legitimate concerns with loose and vicious dogs, such as the obvious risk of human harm, livestock damage, and health problems. Perhaps a complex society demands complex laws. But, a proliferation of dog laws reasonably designed to address these concerns must also recognize the elevated status these creatures occupy to their owners.
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