|Legal Opinion: |
Text of Document: July 29, 1996
Your question is, does MTAS have samples of vicious dog ordinances the city can use to fashion an ordinance to regulate dangerous dogs in the city. The answer is yes.
There are two general kinds of dangerous dog ordinances: breed specific (such as pit bulls), and vicious dogs (which cover any and all breeds). In my view, the vicious dog ordinance is the best approach for a couple of reasons:
1. If someone is injured by a dog not covered by the breed specific ordinance, the ordinance does not apply.
2. The vicious dog ordinance avoids complicated and “expert” arguments over what precisely is a pit bull or other breed, and whether the dog in question was a pit bull or other breed.
However, if the city wants to adopt a breed specific ordinance, such ordinances have been upheld by several courts. [See Dog Federation v. City of South Milwaukee, 5045 N.W.2d 375 (Wis. Ct. App. 1993); Hearn v. City of Overland Park, 772 P.2d 758 (1989); Starkey v. Chester Township, 628 F. Supp. 196 (E.D. Pa. 1986), among other cases.] I have enclosed some breed specific ordinances if that is the route the city decides to take.
In Tennessee, the state’s power over vicious dogs is extremely broad. [See State of Tennessee v. Denver Hartly, 15 TAM 23-2 (Tenn. S. Ct. 1990), and Darnell v. Shappard, 3 S.W.2d 661 (1928). The law is similar in other jurisdictions. [See Sentell v. New Orleans and Carrollton R.R., 166 U.S. 698 (1897); Thiele v. Denver, 213 P.2d 786 (1957); King v. Arlington County, 81 S.E.2d 587 (1954); and Johnston v. Atlanta Humane Society, et al. 326 S.E.2d 585 (1985).]
Look closely at the model NIMLO ordinance for the regulation of vicious dogs. The most comprehensive one is from Tijeras and Bernalillo County, New Mexico. I have also included several good ones from Tennessee cities.
A municipal judge probably has no options with respect to vicious dogs: he can only levy a civil penalty; if the dog needs to be destroyed, he probably cannot issue an order of destruction. [See Responsible Animal Owners of Tennessee, Inc. v. City of Memphis v. Shelby County, 16 TAM 35-3]. While that case is a circuit court case, and is not “the law” in the same sense as is a case handed down by the Tennessee Supreme Court or the Tennessee Courts of Appeal, it may be persuasive if brought to the attention of the courts at the local level. In addition, if the animal owner wants to fight the city tooth and toe nail on the civil penalty, he can appeal it to the circuit court and is entitled to a jury trial.
However, Tennessee Code Annotated, section 44-17-120 provides that the judges of circuit courts on the petition of the attorney general may order the destruction of a dog that has attacked a human and caused death or serious injury. The Tennessee Supreme Court held in Hartly, above, that a dog owner was not entitled to a jury trial in such cases, but that evidence supporting an order of destruction must meet certain minimum standards.
The city’s best approach to vicious dogs is probably to pass a vicious dog ordinance that makes the violators subject to a heavy civil penalty, and in the event that a dog attacks a human being and causes death or serious injury, to request the attorney general to file a petition under Tennessee Code Annotated, section 44-17-120.
Sidney D. Hemsley
Senior Law Consultant