Humane
society historically was agent of the state
 During the 1860's and 1870's, Henry Bergh
of New York succeeded in establishing the first significant anti-cruelty
laws in the United States, and the first humane society, called the American
Society for the Prevention of Cruelty to Animals. (Sydney H. Coleman,
Humane Society Leaders In America, 33-35 (1924).)
The constitution of the ASPCA stated that
its purpose was "[t]o provide effective means for the prevention
of cruelty to animals throughout the United States, to enforce all laws
which are now or may hereafter be enacted for the protection of animals,
and to secure, by lawful means, the arrest and conviction of all persons
violating such laws." (Id.)
In 1867 New York established the first
significant anti-cruelty law in the United States. (N.Y. Rev. Stat.
secs. 375.2 - 375.9 (1867).) For the first time, a person who "needlessly
mutilated, or killed ... any living creature" could be found guilty
of a misdemeanor. The law also prohibited cock fighting, bull baiting,
dog fighting, impounding animals without giving sufficient food and
water, carrying animals in a cruel manner, abandoning infirm animals,
and similar acts.
Section 8 of the 1867 New York Anti-Cruelty
Law gave ASPCA agents the power to arrest offenders, and entitled the
ASPCA to keep all fines collected under the Act. At that time, the ASPCA
was only one year old. "This delegation of state criminal authority
to a private organization was, and is, truly extraordinary." (David
Favre and Vivien Tsang, "The Development of Anti-Cruelty Laws During
the 1800s," quoted from David Favre and Peter L. Borchelt, Animal
Law and Dog Behavior (Lawyers & Judges Pub. Co., 1999), p. 261.)
Henry Bergh himself was also appointed
a prosecutor in New York so that he could present evidence and argue
for the conviction of violaters. (Coleman, supra, p. 48.) To this day,
many states give similar authority to animal control officers who, in
many cases, are humane society employees. (See below and, for an example
of the authority of a "dog warden" to initiate a criminal case, see
sec. 502(a) of the Dog Law [3 P. S. secs. 459
et seq.]: "Any person who has been attacked by one or more dogs, or
anyone on behalf of such person, a person whose domestic animal has
been killed or injured without provocation, the State dog warden or
the local police officer may file a complaint before a district justice,
charging the owner or keeper of such a dog with harboring a dangerous
dog.")
From the beginning, therefore, humane
societies were appointed to enforce the criminal law as it pertained
to animals, and given the power to arrest violators.
Modern
humane society as "public authority" per governmental tort claims act
If a dog bite victim intends to file a claim
against a humane society, an important issue arises as to whether the
humane society is entitled to sovereign immunity and/or the protections
given to governmental authorities under the law of the state where the
accident happened. No court has expressed a clear view one way or another,
but some -- including the United States Supreme Court -- have issued opinions
which bear on the subject. Unfortunately, the victim has no clear answer
at the present time.
The test most often used to determine
whether a third party is entitled to immunity is referred to as the
"arm-of-the-state test." (See, e.g., Savage v. Glendale Union High School,
343 F.3d 1036, 1044 (9th Cir. 2003); Mitchell v. Los Angeles County
Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988).) Under this test, the
decision is based on the following factors:
Whether a money judgment would be
satisfied from state funds
Whether the entity performs central
governmental functions
Whether the entity may sue or be sued
Whether the entity has the power to
take property in its own name or only in the name of the State
The corporate status of the entity
When considering the status of humane society,
some of the answers to these questions usually would be positive, and
others would be negative. As demonstrated above, such an entity clearly
performs central governmental functions, and does so as a not-for-profit
corporation, factors tending to prove that it is an arm of the state.
However, a judgment against it would be paid by the entity and not the
state, it can be sued on its own, and it has the power to take property
in its own name. Therefore, only two of the five factors are indicative
of an arm of the state. It is not clear whether this showing would be
sufficient for sovereign immunity.
In Rickardson v. McKnight, 521 U.S. 399
(1997), the United States Supreme Court declined to extend sovereign
immunity to prison guards employed by a private corporation managing
a prison under contract with a state. Many analogies could be made between
that kind of corporation and a humane society -- each performs central
governmental functions, can sue or be sued, and has the power to take
property in its own name. But the corporation in that case, however,
was for profit, unlike the humane societies.
Despite the lack of a clear answer when
the focus is on the sovereign immunity issue, it appears clear that,
under specific circumstances, a humane society has the status of a “public
authority” under the laws of some states. Those circumstances result
from a combination of the particular state law and the particular facts
of the case. Those circumstances are, in fact, unique to humane societies
because of their historical dual nature as private corporations and
law enforcement entities.
In many states, a municipality is permitted
to engage a local humane society to enforce criminal and penal laws
pertaining to animal control that otherwise fall within the police power
of the municipality. After being conferred these powers, a strong argument
exists that a humane society becomes an instrumentality of the state.
For example, in Menches v. Inglewood Humane Society (1942) 51
Cal. App. 2d 415, 418, the humane society was referred to as "an instrumentality
of the state" which was acting "pursuant to statutory authority" by
placing a dog that turned out to be dangerous.
Similarly, in Conway v. Pasadena Humane
Society (1996) 45 Cal. App. 4th 163, 176, it was held that humane
society officers are restricted by the “Fourth Amendment's requirement
that an official entry into a home be justified by a warrant, consent,
or exigent circumstances.” The defendant in that case was under
contract with the city to perform animal control services (“In July
1992, the City entered into a one-year contract with the Pasadena Humane
Society [the Humane Society], a nonprofit corporation, appointing it
as the poundmaster.” Ibid., 45 Cal.App.4th at p. 168.) The Fourth
Amendment restricts only public officers.
Numerous statutory provisions of California
law compellingly establish that a humane society indeed constitutes
a “public authority.” For example, Corporations Code section 14503 permits
a city to engage a humane society to enforce state and local laws, including
criminal and civil laws:
14503. The
governing body of a local agency, by ordinance, may authorize employees
of public pounds, societies for the prevention of cruelty to animals,
and humane societies, who have qualified as humane officers pursuant
to Section 14502, and which societies or pounds have contracted with
such local agency to provide animal care or protection services, to
issue notices to appear in court pursuant to Chapter 5c (commencing
with Section 853.5) of Title 3 of Part 2 of the Penal Code for violations
of state or local animal control laws....
An example of such local laws is found in
the City of Glendale Municipal Code, which makes the local humane society
responsible for enforcing state and local animal control laws within the
City of Glendale:
6.04.230 Authority-Enforcement.
Any person who is a qualified humane officer
under the laws of the state of California and who is an employee of
the city or of any agency under contract with the city to provide animal
care or protection services, which agency is incorporated for the purpose
of the prevention of cruelty to animals, may issue notices to appear
in court as prescribed by state law for any violations of state and
local animal control laws occurring within the city....
Humane societies in California are empowered
to appoint officers who have many of the same powers as police officers,
including making arrests, carrying a firearm, using force and serving
search warrants, pursuant to these statutes:
Corporations Code sec. 14502.
(a) (1) (A) (i) On and after July 1, 1996, no entity, other than a humane
society or society for the prevention of cruelty to animals, shall be
eligible to apply for an appointment of any individual as a level 1
or level 2 humane officer, the duty of which shall be the enforcement
of the laws for the prevention of cruelty to animals. ...
(2) Any corporation incorporated for
the purpose of the prevention of cruelty to animals that possesses
insurance of at least one million dollars ($1,000,000) for liability
for bodily injury or property damage may, six months after the date
of its incorporation and by resolution of its board of directors or
trustees duly entered on its minutes, appoint any number of persons,
who shall be citizens of the State of California, as humane officers,
provided that the individuals to be appointed have met the training
guidelines set forth in subdivision (i)....
(i) (1) (A) A level 1 humane officer
is not a peace officer, but may exercise the powers of a peace officer
at all places within the state in order to prevent the perpetration
of any act of cruelty upon any animal and to that end may summon to
his or her aid any bystander. A level 1 humane officer may use
reasonable force necessary to prevent the perpetration of any act
of cruelty upon any animal.
(B) A level 1 humane officer may make
arrests for the violation of any penal law of this state relating
to or affecting animals in the same manner as any peace officer and
may also serve search warrants.
(C) A level 1 humane officer is authorized
to carry firearms while exercising the duties of a humane officer....
If a person resists one of these “humane
officers,” the penalty is a misdemeanor. A person who impersonates a humane
officer is also guilty of a misdemeanor:
Corporations Code sec. 14502
(k). Any person resisting a humane officer in the performance of his
or her duty as provided in this section, is guilty of a misdemeanor.
Any person who has not been appointed and qualified as a humane officer
as provided in this section, or whose appointment has been revoked as
provided in this section, or whose appointment, having expired, has
not been renewed as provided in this section, who shall represent himself
or herself to be or shall attempt to act as an officer shall be guilty
of a misdemeanor.
Numerous California Penal Code provisions
equate humane society officers to police officers and sheriffs. For example,
Penal Code sec. 597f subd. (d) grants the exact same rights and obligations
to an “officer of a pound or animal regulation department or humane
society, or any officer of a police or sheriff's department.”
Humane officers exercise police powers
under the California Food & Agriculture, Penal and Health &
Safety Codes. Here is a partial list of the powers and code sections:
- May initiate proceedings to collect
civil penalties relating to spaying or neutering, pursuant to section
31763 of the Food & Agriculture Code.
- May seize, care for and euthanize
animals that are without proper care, pursuant to Penal Code section
597.1 and 597f(b).
- Is required to locate owners of certain
animals for the purpose of returning lost animals to the owners, pursuant
to Penal Code section 597.1(l).
- Is required to assist horse owners
who need to abandon or give up ownership of their horses, pursuant
to Penal Code section 597.2.
- Must inspect vehicles that transport
horses to slaughter, per Penal Code section 597o(a)(12).
- May cite horse owners and keepers
who fail to meet certain standards for humane treatment of horses,
pursuant to Health Safety Code section 25988.
- May inspect the records of pet dealers
pertaining to the health, status, and disposition of dogs and cats
pursuant to Health & Safety Code section 122145.
Humane officers also are grouped with officers
“of a district, county, or city” with respect to Government Code provisions
relating to misconduct in office and removal from office. (See Government
Code section 3060 - 3075.)
Licensing dogs and performing other governmental
functions for a city is further evidence that the humane society is
a public authority. The ability to issue dog licenses is a governmental
function, not a private one. (See California Government Code sec. 38792(a),
“The legislative body of a city may impose and collect a license fee
for a period not to exceed two years and not exceeding the cost of services
relating to dogs....”)
Functioning under contract as an animal
control agency is also a factor that may make a humane society the equivalent
of a governmental entity. An animal control agency is specifically referred
to as a “local public agency” in places throughout the California codes
(see, i.e., the reference in Government Code sec. 53126.5 to “a local
public agency such as street maintenance and animal control.”) Similarly,
animal control services are included in the list of governmental services
in the “County Service Area Law." (See Government Code secs. 25210.1-25210.9c,
especially 25210.4a which refers to “animal control” as one of the “miscellaneous
extended services” covered by the County Service Area Law.)
An interesting issue arises in
the State of California pertaining to the constitutionality of granting
governmental powers to a humane society. The following provision appears
in the California State Constitution:
CALIFORNIA CONSTITUTION
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL:
SEC. 12. No amendment
to the Constitution, and no statute proposed to the electors by the
Legislature or by initiative, that names any individual to hold any
office, or names or identifies any private corporation to perform
any function or to have any power or duty, may be submitted to the
electors or have any effect.
The California State
Constitution plainly forbids the granting of governmental powers or
duties to any private corporation, among other things. The issue therefore
is the legality of the state laws and ordinances in California that
confer on certain humane societies the power to select animal control
officers and the power to carry out duties of animal control, as described
elsewhere in this article. An argument exists that some or all of those
laws which grant those powers are unconstitutional. No court has addressed
this issue yet.
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