July 9, 2001
Dear City Manager:
You have the following question: What options does the city have under its animal
control ordinance to impose some conditions on the return to the owner of an animal that bit a
person and seriously injured him or her? Under the facts you related a dog bit a person, and the
city would like to condition the return of the animal to the owner upon his or her agreement to
confine or restrain the dog. The owner of the dog has already been tried, convicted, and fined in
municipal court for (I presume) violating '10-204 of the city’s municipal code, which required
dogs known to be vicious or dangerous to be confined or otherwise restrained, and/or violating
'10-208, which prohibits dogs from running at large.
The answer is none. However, the city could consider asking the district attorney general
to petition for the destruction of the dog under Tennessee Code Annotated, ' 44-17-120.
The city’s animal control ordinance is found in Title 10, Chapter 2, of the city’s Municipal
Code. That ordinance makes only limited provision for the custody of animals by the city. In '
10-201, it provides that:
If any dog or cat has bitten any person or is suspected of having
bitten any person or is for any reason suspected of being infected
with rabies, the animal control officer or any other person properly
designated officer or official may cause such cat or dog to be
confined or isolated for such time as he deems reasonably
necessary to determine if such dog or cat is rabid.
Arguably, that provision would permit the city to itself confine the dog, or to require the
owner to confine the dog. But in either case, the confinement would be required to be tied to the
reasonable time that it took to determine if the dog was rabid.
'10-213, permits the city to summarily destroy a dog running at large when “because of
its viciousness or suspected infection with rabies,” it cannot be safety impounded. That
provision, of course, would not apply to a situation where the dog is already in the custody of the
city or of its owner.
It seems clear to me that the only authority the city court has in this case is to charge and
fine the owner of the dog. That already having been done, the city’s authority is exhausted.
Even the definition of “vicious dog” in the '10-201, of the city’s Municipal Code does not help the
city. It simply defines that term for the purpose of ' 10-204, which merely requires dogs “known
to be vicious” to be securely restrained. In fact, if a dog has never exhibited a vicious tendency
in the past, the city might have some trouble convicting a person whose dog has bitten someone
violating '10-204.
The city has another option for handling vicious dogs: Tennessee Code Annotated, ' 4417-120, provides for the destruction of a dog that attacks a human and causes serious injury or
death. The order of destruction is issued by the circuit court upon petition of the attorney
general. In State v. Hartley, 790 S.W.2d 276 (Tenn. 1990), the Tennessee Supreme Court
points out that the state under its police powers has the right to enact a summary procedure for
the quick destruction of animals to promote public safety. That court put its seal of approval on
that statute, and declared that the owner of a dog that fell under it had no right to a jury trial on
the question of whether the dog should be destroyed. The only reason the dog escaped
destruction in that case was that:
As heretofore noted, the show cause order in this case was issued
upon petition filed by the district attorney general of the county
wherein the alleged dog attack occurred. The affidavit to the
petition was based on “information and belief,” not on personal
knowledge, and there is nothing in the petition to indicate that the
affiant was competent to testify to any of the facts set forth in the
petition. While such an affidavit may be sufficient to justify the
issuance of a show cause order, standing alone it is not evidence
to justify summary action by the trial court. See generally Rule
56.05 of the Tennessee Rules of Civil Procedure. In
circumstances where the show cause order is issued on a oath
based on “information and belief,” to satisfy the requirement of due
process, the trial court should require the district attorney general
to present evidence making out a prima facie case for the
destruction of the dog that is the subject of the petition, in
accordance with the requirements of the statute. If the dog owner
is then unable to prove that the elements of T.C.A. ' 44-17-120
have not been established by a preponderance of the evidence, an
order authorizing destruction of the dog should issue... [At 278]
I have enclosed a copy of Tennessee Code Annotated, ' 44-17-120, for your review.
Let me know if I can help you further in this or any other matter.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant