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:
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 CONSTITUTIONARTICLE 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.
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.
A humane society and its animal control officers are subject to liability for dog bites under a variety of circumstances. However, they also may be entitled to the same privileges as a governmental defendant, including a special statute of limitations.