I. Introduction

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 Web Center).  In doing so, this paper will also analyze the case law relative to impoundment of dogs for various offenses by examining the constitutional challenges to impoundment and destruction.  It will also give several state laws examples relative to seizure and impoundment of dogs. 

II. Exercise of General Police Power to Impound or Kill Dogs

As noted in the Web Center paper on municipal police powers, state and local governing units are granted broad authority to control dogs.  Indeed, “[t]the power of the state has been exercised to regulate and control dogs to a greater extent than it has for any other class of domestic animals. . .”  4 Am. Jur. 2d Animals § 24.  Tennessee law exemplifies this broad police power given to municipalities to seize and destroy dogs.

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.

TN ST § 5-1-120.

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. 

III. Loose Dogs or Dogs Running 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 Cleveland had the right in promoting the health, safety, and welfare of its citizens, which was granted through both the constitutional right of home rule and by powers conferred directly to municipal corporations by state statute.  This power extended to the instant ordinance that provided that no dog should be permitted to run at large unless muzzled and that any dog found at large and unmuzzled would be impounded.  Further, by carrying out this mandate under the ordinance, the city’s disposition of the animals that were legally impounded was simply the performance of a ministerial or administrative duty.  Id.

In many states, local authorities are given this near complete discretion to adopt strict dog seizure laws.  In Oklahoma, local municipalities are given broad authority to enact measures relating to the seizure and killing of dogs at large.

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.  New Mexico state law, for example,  mandates that each municipality and county enact ordinances for the seizure of dogs running at large.  NM ST § 77-1-12.

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.  New Hampshire describes the term “at large” in its Dog Control Law:

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.

NH ST § 466:30-a.  Under this definition, a dog running free at a park out of sight of its owner is loose, as is a dog that has escaped from its pen while not wearing a collar.  The law does not distinguish between the reasons a dog might be loose in deciding its fate.  Other statutes focus on the license status of the dog in determining whether it is subject to seizure as a loose dog.  New York law, for instance, provides that a dog control officer may seize dogs for any of the following:

(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, Hawaii law does not distinguish between unlicensed dogs in the presence of their owners; all unlicensed dogs are subject to mandatory seizure. 

. . .[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. . .

HI ST § 143-8.  Many other states have adopted a mandatory seizure approach when it comes to unlicensed, loose dogs.

In Mississippi, dogs found running-at-large without a collar and license tag will be killed.  MS ST § 41-53-11.  In fact, the statute provides that, not only is such action lawful, but it is the duty of any sheriff, conservation officer or peace officer to do so.  Further, an owner cannot maintain an action for such killing.  The statute later provides that it is also the duty of the officer to keep the dog for a period of five days.   MS ST § 41-53-11.  How this provision squares with the duty provision to kill unlicensed dogs is unclear.  Other states provide a similar scheme.  Idaho also provides that, in localities where a measure has been adopted, it is the duty of the county sheriff to seize and impound all uncollared and unlicensed dogs.  ID ST § 25-2804.  However, unlike Mississippi, the officer is required to impound the dog for a period of five days and must make a reasonable effort to notify the owner.  ID ST § 25-2804.  In Arkansas, municipalities have the power to enact measures to prevent the running at large of dogs and to authorize their destruction.  Prior to destroying the dog, the municipality shall give five days notice, taking the form of a certified letter.  AR ST 14-54-1102.  This, of course, presumes that the dog is either licensed or identified in some manner such that notice can be made to the owner.  The statute does not itself make a distinction between licensed or unlicensed dogs.

Kentucky recognizes that a dog warden may not always be able to impound a loose dog.  As a result, he or she is given authority to kill an unlicensed loose dog.

(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.

KY ST § 258.215.  Thus, Kentucky mandates that officers destroy a loose and unrecoverable dog.  KY ST § 258.215(1). 

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 (Vt. 1971).  In Vosburgh, the dog owner appealed a directed verdict granted for the defendant-farmer, who allegedly wrongfully impounded the dogs, and the town constable, who allegedly wrongfully killed the dogs.  While the Vermont Supreme Court held that the farmer acted reasonably when he secured the dogs overnight after finding them chasing his injured cows, there was question as to the constable's actions.  The statute in question authorized the constable to kill dogs not registered or wearing a prescribed collar.  This raised an issue as to whether or not one or both of plaintiff's dogs were properly collared.  The conflicting evidence adduced at trial precluded a directed verdict for constable.  Id.  Since many statutes provide different dispositions for unlicensed dogs, evidence of registration and collar may be crucial to an impounded dog’s fate, according to this case.

The legal status of a loose dog may differ by statute.  In Maryland, a dog running at large is a "nuisance" under law.  The statute provides that such dogs are deemed a nuisance and may be seized or killed if the dog warden is unable to catch the dog:

(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, Rhode Island provides that impounded dogs may be destroyed in five days if the owner fails to pay a hefty fine.

[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.

RI ST § 4-13.1-9.  Many owners may then face the reality of raising a substantial amount of money to retrieve a family pet.

Minnesota extends the ability to seize a loose dog to anyone, not just a duly appointed law enforcement or animal control officer. 

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. . .

MN ST § 347.14.  It is unclear from the statute whether this provision will immunize a civilian from liability resulting from the seizure.

Ohio provides only for the seizure of licensed dogs under very circumscribed conditions when on their owners premises.  “A dog that wears a valid registration tag may be seized on the premises of its owner, keeper, or harborer and impounded only in the event of a natural disaster.”  OH ST § 955.12.  This unusual provision recognizes the enhanced legal status of a licensed dog.

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).  New Jersey provides several instances under which a person appointed by a local government must seize offending dogs, including those deemed stray.  These include:

(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.

NJ Stat. 4:19-15.16.

Missouri adds a twist to the seizure of dogs at large.  All cities and town marshals are required to impound dogs at large without collars.  These dogs are kept for one week after which the dogs shall be put to death by humane methods.  Interestingly, the statute also provides that, “Any marshal who shall fail or refuse to take up and impound any such dog shall be guilty of a misdemeanor and on conviction thereof fined not less than five dollars nor more than twenty-five dollars.”  MO ST § 273.100.  Thus, not only does Missouri mandate the seizure of dogs at large, but law enforcement officers who fail to comply with this statute incur criminal prosecution.

In states with a hunting tradition, loose dogs are spared if engaged in hunting activities.  Kentucky law recognizes that a wandering dog at night might simply be a lost hunting dog, as opposed to a marauding canine.  Thus,

[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. . .

KY ST § 258.265.  The officer must then refrain from killing the dog if he or she is “reasonably sure that the dog is a hunting dog” unless it is found in the act of attacking livestock or humans.  KY ST § 258.265.

Finally, a dog may be subject to impoundment for failure of its owner to pay a license tax, or head tax.  In West Virginia, municipalities may enact a head tax on dogs.  While it is discretionary to impound a dog for which a tax has not been paid, the consequences once the dog is impounded are severe. 

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.

WV ST 7-7-6d.  Indiana also provides that dogs upon which a tax has not been paid are subject to seizure.  Indeed, the state provides a “round-up” day for these tax-evading dogs.

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. 

IN ST § 15-5-9-14.  Whether such an action occurs on that day in June is likely a matter of available local resources.  However, it illustrates the importance states place on the exercise of police power with regard to dogs.  Notably, however, a state statute mandating the destruction of loose dogs may preempt local decisions to impound stray animals. 

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 Lincoln and also against Brunelle in his individual capacity, which initially resulted in a jury award of $57,090. 

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 Lincoln ordinance was superseded by the provisions of § 4-13-12 and that Brunelle acted according to law in his destruction of the Great Danes.  In fact, the court found that "[t]his charge was meant to be a legal duty to be carried out without exception."  Id.  The court found the evidence was undisputed that the Great Danes had escaped the confines of their owners' property and that none of them was collared with a license.  Thus, Brunelle had "an unqualified duty" to destroy the Great Danes.  Indeed, "[a]ny obligation created by the Lincoln ordinance to have acted otherwise, such as by impounding the dogs instead of killing them, must fall away in the face of the paramount state statute."  Id.

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."  Id.  The plaintiffs contended that the statute was enacted when the state was primarily rural and the provisions in question were designed to control livestock damage by wild dogs.  While the court recognized that the state might be outdated, it declined to usurp the legislature's duty to amend or repeal the statute.  In most states where immediate destruction of loose dogs is not mandated by law, due process requires at least some form of notice of impoundment.  

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 New Jersey statute provides a typical example of notice requirements:

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 New York, is given by certified mail:

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. 

In Michigan, a dog pound is prohibited from selling or disposing of a dog within four days of its acquisition.  If the dog is wearing a license tag, the owner must be notified in writing and the animal cannot be disposed of within 7 days of mailing the notice.  MI ST §  287.388. 

A few states provide alternate notice schemes, to address situations where the owner address is unavailable.  In Minnesota, several alternative methods of notice are provided.

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. 

MN ST § 347.14.  Kentucky also provides for notice by publication where no animal control facility exists.

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.

KY ST § 258.215(1).  In Ohio, owners may be derived from the municipality’s registration list.  Alternatively, notice by publication may occur.

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.

OH ST § 955.12.  Publication allows owners who cannot be notified by mail a chance to redeem their pets.

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.  New Hampshire outlines this concept in its notice provision.

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.  Alabama law provides that “[w]hen dogs and cats are impounded and if the owner thereof is known, such owner shall be given direct notice of the impoundment of said animal or animals belonging to him. . .”  AL ST § 3-7A-7.  The statute does not define what constitutes “direct notice.”  Similarly, ambiguous notice requirements may stem from the requirement of “reasonable notice” to the owners.  In the District of Columbia, the Mayor or his or her agent is required to a make a “prompt and reasonable attempt to locate and notify the owner” that his or her animal has been impounded.  DC CODE § 8-1805(b).  While the statute fails to specify what constitutes “prompt and reasonable,” a subsequent section provides that an impounded dog not redeemed by its owner within seven days is deemed abandoned.  DC CODE § 8-1805(f).  If notice is indeed given under Section b, thought the exact form is not specified, the owner has seven days from the date of the notice.  Finally, any animal abandoned without identification tags is deemed abandoned if not claimed in 5 days of its impoundment.  DC CODE § 8-1805(f).  Idaho also provides that the sheriff who has impounded a dog at large must make a “reasonable” effort to notify the owner without specifying what constitutes a reasonable effort.  ID ST § 25-2804.  If such an effort has been made, an unlicensed dog may be destroyed.  ID ST § 25-2804.    

Notice provisions may also apply outside of government contracted animal control agencies.  In Virginia, notice provisions for individuals who found companion animals and provide care to them are outlined by statute.

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.

VA ST § 3.1-796.96:7.  This is ostensibly an attempt to immunize private agencies like veterinary offices from civil suits arising from disposal of abandoned animals.  Compliance with statutory notice requirements, whether by a public or private agencies, will usually suffice due process requirements for notice.  States generally proscribe minimum lengths of impoundment in an effort to ameliorate this harsh result. 

V. Length of Impoundment

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.  Kentucky law provides that a seized dog shall be impounded for a period of five (5) or seven (7) days, to be determined by the local animal shelter prior to destruction.  KY ST § 258.215(1).  In West Virginia, a dog is given five days to redeem his or her dog from the time the notice was posted or given.  WV ST § 19-20-8.  The duration in West Virginia is dependent upon the notice given; in Kentucky notice is presumably irrelevant to the length of impoundment.

The time period for retention of impounded dogs may differ depending on whether the dog is identified by a dog tag.  In Tennessee, for example, the owner of an impounded dog that is wearing a tag will be notified by a postcard to claim the dog within five days or else the dog will be destroyed.  TN ST § 68-8-109.  In contrast, if a dog is not wearing a tag, the impounded dog will be destroyed within two days if not claimed.  TN ST § 68-8-109. 

Oregon also distinguishes between those dogs that are licensed and those that do not have tags or other identifiers.

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.

OR ST § 609.090(2).

New York does not distinguish between licensed and unlicensed dogs in terms of how long an impounded dog is held.  In either case, a dog shall be held for five days from the day it was seized.  NY AGRI & MKTS § 118.  After that period, an owner forfeits title and the dog may be made available for adoption or euthanized.  NY AGRI & MKTS § 118.  The statute does allow municipalities to shorten this time period.

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.

NY AGRI & MKTS § 118. 

Maryland appears to have one of the shorter periods of retention prior to destruction.  The length of time in Maryland to impound dogs is reduced to 72 hours.  However, there does not appear to be any notice requirement.  Amazingly, despite the lack of notice, a dog may be legally killed by the county within 120 hours.

(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 Calvert County. The dog shall remain impounded for an additional 48 hours, during which time any person desiring may obtain ownership of the dog by tendering the fee for the costs of seizure and impounding and by purchasing a license.

(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, South Carolina, gives an owner up to two weeks to reclaim his or her dog if he or she has notified animal control authorities that he or she will pick up the dog.  Thereafter, the dog may be destroyed.  SC ST § 47-3-540.

Animals that are abandoned at private facilities may be treated differently than stray animals.  In Utah, for example, abandoned animals at veterinary offices must be kept for ten days.

(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.

UT ST § 58-28-9.  Interestingly, the period of retention for unidentified or unclaimed taken to an animal shelter by an animal control officer is shorter than the above time period for abandoned animals:

(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

(ii) euthanasia.

(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.

UT ST § 77-24-1.5.  Regardless of the length of impoundment, due process generally demands more than a gratuitous or mechanical application of a statute.

VI. Due Process and Impoundment

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.  New York provides a typical statutory exoneration of liability for seizure and euthanization of a dog.

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 Waxahachie and impounded for one day, and released to plaintiff only after payment of a fee of $2.00.  Plaintiff then brought a suit to enjoin enforcement of the 'Dog' Ordinance of the City of Waxahachie, contending that ordinance is unconstitutional under both the United States and Texas Constitutions.  Specifically, plaintiff argued that a dog is property, and because the ordinance is silent as to notice and judicial determination of violation, it is violative of the United States Constitution (Amendments V and XIV) and the Texas Constitution (Art. 1, Secs. 17, 19, and 29, Vernon's Ann.St.) (which provide that no person shall be deprived of life, liberty or property without due process of law and just compensation).  Plaintiff essentially argued an uncompensated taking by the government.  The ordinance provided that dogs found running at large within the city may be picked up, impounded, destroyed, or otherwise disposed of in accordance with the terms of the ordinance.  It then allowed summary sale or destruction of any dog impounded that is not redeemed within 72 hours.  Id.

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 United States or of this State."  Id.  In its analysis, the court simply relied on the reasoning from a case decided in the previous century:

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.”  Id.

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 (Miss. 1977), a court again invoked a case from the century prior in finding that no violation of due process occurred for the impoundment of a dog in violation of a leash ordinance.

This Court held in Julienne v. City of Jackson, 69 Miss. 34, 10 So. 43 (1891):

'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 Miss. at 37-38, 10 So. at 43.

City of Water Valley v. Trusty, 343 So.2d 471 (Miss. 1977).  Relying on this same conclusory reasoning from Jenkins v. City of Waxahachie, 392 S.W.2d 482 (Tex.C.A.1965), the court followed suit with the majority of jurisdictions holding that such actions do not even implicate due process.  See also, Thiele v. City and County of Denver, 135 Colo. 442, 312 P.2d 786 (1957) and cases cited at Annot. 56 A.L.R.2d 1026 (1957).  Further, the court found that since Mississippi Code Annotated s 21-19-9 (1972) authorized municipalities to regulate the running at large of animals of all kinds, an ordinance enacted pursuant to that authority, was presumptively constitutional. 

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.  Id.  Thus, prior to destruction of a dog, an owner is entitled to an opportunity to be heard, unless there is a need for an immediate government action.  Id.  While the facts in Phillips involved dangerous dog impounded after biting a child, the court found that a “courtesy hearing” offended notions of due process.  “A hearing granted as a matter of discretion is no substitute for due process.”  Id.  The court found that the ordinances were unconstitutional for failing to provide notice and a hearing before or after seizure of an uncontrolled biting or vicious dog.

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.”  Id. 

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 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976).  While, due process is said to be a “flexible” concept based on the nature of the liberty or property interest at stake, an essential element of due process is the right to notice and a meaningful opportunity to be heard.  Mathews, 424 U.S. 319, at 332.  Indeed, the United States Supreme Court "consistently has held that some form of hearing is required before an individual is finally deprived of a property interest." Mathews, 424 U.S. at 333. 

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 U.S. at 335.  Unfortunately, in pet cases, the weighing of such interests is subjective because the law does not place the status of a pet above that of a couch, toaster, or television.  One animal impoundment case has recognized that a higher property interest may be involved in pet cases when applying the Matthews factors:

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 Battle Ground, 114 Wash.App. 1062 (Not Reported in P.2d) (2002).  (In Rhoades, the plaintiff specifically contended that an ordinance requiring the impoundment and destruction of their exotic pets without proper notice was unconstitutional.  However, the court found the ordinance at issue provided a notice scheme of up to 30 days as well as an opportunity to appeal the ruling to municipal court.  Thus, due process was met.)

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 (Cheatham County) did not have a dog pound or similar facility, “and thus the defendant Hamlin was confronted with a circumstance requiring that, as a peace officer, he exercise an appropriate degree of judgment and discretion.” 

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 . . .

Id.  Further, the court noted that the majority of jurisdictions which have addressed the due process claim have concluded that killing a pet does not give rise to a 42 U.S.C. § 1983 claim. The court relied on the fact that virtually every court that has addressed this issue has concluded that shooting a pet animal does not give rise to a 42 U.S.C. § 1983 claim premised on a violation of the Due Process Clause of the Fourteenth Amendment.  (See, Police Shooting Pets Web Center Topic Area; See also, Brown v. Muhlenberg Township, 269 F.3d at 213-14; Bell v. City of Louisville, No. 3:00CV-311 S, 2000 U.S. Dist. LEXIS 21674, at *23-28 (W.D.Ky. Nov. 6, 2000); Newsome v. Erwin, 137 F.Supp.2d 934, 943 n. 9 (S.D.Ohio 2000); Attama v. Police Officer Troy Crawley, N. 99-434, 1999 U.S. Dist. LEXIS 7758 (E.D.Penn. May 20, 1999). Instead, the court observed the vast majority of cases that even entertain such claims evaluate them under an unreasonable governmental seizure of personal property in violation of the U.S. Const. amend. IV. Thus, the Ivey court followed the majority line in declining to consider plaintiff’s § 1983 action for due process, and did not consider an unreasonable seizure claim because plaintiff failed to raise it in his pleadings.

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. 

VII. Fourth Amendment Concerns in Seizing Dogs

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 U.S. and state constitutions generally forbid the warrantless entry into homes unless a person consents to the entry or exigent circumstances exist.  This would of course hold true for violations of local dog laws.  Just as an officer could not enter a person's home without a warrant for violation of a housing code ordinance, he or she is also prohibited from entering for a dog violation.  However, many dog code violations often involve the pursuit of an offending dog (e.g., one that is running at large or even deemed "dangerous").  This fact tends to muddy the waters of an otherwise firm constitutional guarantee.

Consequently, a couple of states have addressed this claim by statute.  In New Jersey, an officer may enter all but the owner’s premises if he or she is immediately pursuing a dog.

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 California statute specifically provides that no authority may enter private property for the purpose of impounding a dog for violation of a leash law if the dog has not strayed from the property.  CA GOVT § 53074.  If the dog has strayed and no one is home at the resident, the officer may enter the property to obtain the dog for impound.  In that case, the officer must leave notice of the impound:

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.

CA GOVT § 53074.

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. 

In Conway, the City of Pasadena had an ordinance in place that allowed the city poundmaster to Seize and impound dogs found running at large. (Pasadena Mun.Code, §§ 6.08.020, 6.08.080.).  A Sergeant Jurman of the Humane Society observed a dog running at large, and shortly thereafter, saw the same dog who he recognized as “Toby” from previous encounters, run across another street.  After calling for assistance, the officer saw Toby "run home" to the Conway residence.  After knocking on the front door of the house and receiving no response, the sergeant noticed that one of the rear doors to the house was open approximately two feet and assumed Toby had gone inside the residence.  The humane society sergeant requested the assistance of the police because he feared that a burglar might be in the Conway home.  The court noted that the police officer, based on his conversation with Jurman, believed that the dog was a stray and did not belong on the property, so he allowed the Humane Society officer to enter the home and impound the dog.  The Conways were charged with a violation of the City's "leash law" (Pasadena Mun.Code, § 6.12.010), which is a misdemeanor.  Id.

The gravamen of the action was a federal civil rights claim (42 U.S.C. § 1983) alleging that defendants violated the Conways' rights under the Fourth Amendment to be free from unreasonable searches and seizures.  In examining whether the circumstances were exigent for purposes of the Fourth Amendment, the court noted that the United States Supreme Court has previously frowned upon a finding exigent circumstances, especially when warrantless arrests in the home are at issue when the underlying offense for which there is probable cause to arrest is relatively minor.  Id. 

Even if exigent circumstances permitted the police to enter the Conway home and search for a burglar such circumstances did not exist after the police completed their initial search. No one was inside the house, and the dog was safely secured in one of the bedrooms. Defendants do not contend that Toby posed a danger to anyone or anything at that time.  Thus, without exigent circumstances or consent the Fourth Amendment precluded the animal control officers from making a warrantless entry into the Conway residence to enforce the leash law.  Id. 

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.

VIII. Impoundment of Dogs Chasing Livestock or Game

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 New Jersey statute illustrates a typical law.

. . . 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 Wyoming, the ones for destruction is placed on the person or entity owning the dog.

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 South Dakota, the focus is on dogs interfering with the big game hunting industry.

A law enforcement officer may destroy any dog found pursuing, injuring or killing any big game animal on public lands.

SD ST § 40-34-12.  Further, this ability to destroy an offending dog extends to private landowners.

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.”  SD ST §40-34-12.  In contrast, in Washington, the fish and game director must first find that a necessity exists to impound and kill dogs found to be pursuing deer or elk.

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. 

WA ST 77.12.315.  Similarly, West Virginia also demands that conservation officials comply with further requirements prior to destroying dogs found to be chasing big game. 

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.

WV ST § 20-2-16.

One case has suggested that, at least under Ohio law, the pursuit of livestock must still be "hot."  Perkins v. Hattery, 155 N.E.2d 73 (Ohio App. 1958).  In an action by owner of licensed dog to enjoin a county dog warden from killing, destroying, or otherwise disposing of dogs, the Ohio Court of Appeals held that a dog warden, either in his official capacity or as an individual, was not authorized to seize and kill a dog that was not then running at large or actually in act of chasing, worrying, injuring, or killing sheep.  In this case, the court found a time of nine hours after dog was alleged to have killed sheep while running at large was too attenuated under the statute.

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.

OH ST § 955.28.

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 Oregon, a state statute mandates the immediate impounding and subsequent killing of impounded dogs found to have chased livestock.  However, this same “death penalty” provision does not apply to dogs who have chased people.  In his article, Oregon Dog Control Laws and Due Process:  A Case Study, 4 Animal Law 95 (1998), Christopher Eck examines the incongruity in Oregon dog control law with respect to livestock.  Oregon law provides that a dog impounded for chasing a person may be released while a dog impounded for chasing livestock must be killed.  Id.  Further, Eck notes the ultimate discrepancy in the law:

If a dog chases a person, Oregon law permits an animal control officer to impound the dog, bring the dog’s owner to court, or both.  If the dog is impounded, the owner can redeem the dog by simply paying certain impound fees.  Even if the dog has injured or killed a person, the dog need not be killed . . . In contrast, if a dog chases, injures or kills livestock, Oregon law requires that the dog be impounded and killed.

[footnotes removed].  Id.  Attempts to ameliorate this harsh results and apparent conflict in the law have failed, Eck notes.  In fact, he also states that the Oregon livestock industry was so successful in opposing a bill that it never even received a hearing.  Id.

An examination of the relevant Oregon statutes illustrates this incongruity.

(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.

OR ST § 609.155.  Once a hearing has been conducted to determine whether the dog is guilty of chasing or wounding livestock under ORS § 609.158, the following action occurs depending on whether it is the dog’s “first offense” or a subsequent violation.

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).

The Oregon statute does allow the owner to request a hearing prior to the county making a determination:

(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).

OR ST§  609.156.  However, it appears that the hearing simply determines the fact of whether the dog is guilty; the court's decision in Roach confirms that the dog’s fate is predetermined by statute. 

It is interesting that the status “human’s best friend” becomes imperiled when livestock or commercially viable state game interests suffers.  Indeed, in Texas, offending dogs share the same status as coyotes that destroy livestock.

(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.

Texas Health and Safety Code § 822.013.  Clearly, Oregon and other states continue to value commercial animals above companion animals.  Protecting economic interests are but one valid exercise of police power authority in relation to dogs.  In fact, many of the current dog laws reflect a more historic interest; protection of public health. 

IX. Destruction of Dogs for Health Reasons

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.

PA ST 3 P.S. § 459-301. 

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. 

AL ST § 3-7A-8

In Wisconsin, a dog may be "sacrificed" if suspected of rabies:

(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. 

WI ST § 95.21.  In recognition of local police powers, a city, county, village or town may impose a rabies control program with more restrictive provisions. Id.

Similarly, in Colorado, the health department is given authority to impound any pet animals found running at large.  “Such power to impound and dispose shall extend to any and all animals unclaimed and found or suspected to be affected by rabies, whether wild or domestic.”  CO ST § 25-4-610. Hawaii law provides for immediate seizure of evidently sick or diseased dogs.  Section § 143-12 provides that “[a]ny police officer or animal control officer may seize and, after notice to the owner if the owner can be found, may kill any dog running at large which is so obviously diseased as to be a menace to the health of persons or animals.”  Further, all dogs taken into custody by animal control “which by reason of age, disease, or other causes, are unfit for further use or are dangerous to keep impounded may be forthwith humanely destroyed by the animal control officer.”  HI ST § 143-13.  Apparently, no notice is required to the owner. 

Immediate measures are also allowed by statute in North Dakota.  North Dakota allows the health department or other agency acting on its behalf to “promptly seize and humanely kill, impound at the owner's expense, or quarantine any animal” suspected of rabies or any stray or unwanted animal with possible rabies exposure.  ND ST 23-36-03.  The District of Columbia also authorizes the killing of sick or injured animals.  The Mayor may dispose of any wild, sick, or badly injured animal upon its impoundment.  DC CODE § 8-1805(c).  Nebraska allows the impoundment of “[a]ny dog found outside the owner's premises whose owner does not possess a valid certificate of rabies vaccination and valid rabies vaccination tag . . .”  However, under this statute, notice of impounded is required through public notification at the pound itself.  An unclaimed dog impounded under this provision may be disposed at the end of five days.  NE ST § 71-4408.  In North Carolina, “When quarantine has been declared and dogs and cats continue to run uncontrolled in the area, any peace officer or Animal Control Officer shall have the right, after reasonable effort has been made to apprehend the animals, to destroy the uncontrolled dogs and cats and properly dispose of their bodies.”  NC ST § 130A-195.

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 Prairie City, 740 P.2d 236 (Or.App.,1987).  The specific issue in that case was whether plaintiff stated a claim for relief after enduring rabies shots where a dog was destroyed in two days rather than the ten required by statute.  The court held that the statute, which required the city to hold biting dog for at least ten days to determine whether dog is rabid, did in fact impose a standard of care relevant to determine whether the city's conduct was reasonable. 

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 Illinois Animal Control Act. There is no meaningful reason for a distinction between stray animals and those simply running at large. The authority to regulate and control is based on public health requirements, not upon ownership of any pet or other animal.

Peoria County v. Capitelli, 494 N.E.2d 155 (Ill.App. 3 Dist.,1986).  The caption from the above case illustrates the legitimate triumph of public interests over the individual interests of ownership in those pets many consider to be members of the family. 

X. Conclusion

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.