The remedies and penalties in California pertinent to dangerous dogs and their owners are established by common law (dating from colonial times), court cases ("case law"), city ordinances, county ordinances, and state statutes (the Civil Code, Penal Code, Food & Agriculture Code, and Health & Safety Code). There are different consequences depending on who the victim is, and the behavior of the dog and its owner. Note that the overview is limited to situations involving human victims and domestic animal victims, not farm animals; the remedies and penalties for injuries to farm animals are not within the scope of this website.
Overview of criminal prosecution and restitution
The conviction of a crime under the Penal Code or the code of ordinances of a city or county is extremely important in cases of dog attacks on people or domestic animals because it triggers the remedy of restitution under California Constitution, Article 1, section 28, subdivision (b) and Penal Code section 1202.4. Approximately 800,000 Americans require medical treatment for dog bites every year, but less than one percent of the victims receive compensation from liability insurance policies (homeowners, renters and commercial insurance). In cases where a criminal law was violated (including but not limited to leash laws), restitution normally is the victim’s only recourse for the costs of medical treatment and other economic losses (i.e., not pain and suffering, loss of quality of life, or other nontangible items of damage covered by tort law). The victim’s right to restitution is guaranteed under the California Constitution. Article 1, section 28, subdivision (b) states: "All persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer." To implement this right, California Penal Code section 1202.4 states: "A victim of crime who incurs any economic loss as a result of the commission of a crime shall receive restitution directly from any defendant convicted of that crime.”
If a defendant does not pay for the victim’s medical treatment, the costs thereof must be borne by the victim, the health insurance industry and public welfare programs. This is unjust and contravenes both the California Constitution and the intent of the legislature. Therefore an animal control department or prosecutor’s office that does not file available criminal charges and press for conviction (or a disposition which includes restitution) performs a grave disservice to both the victim and the people of this state.
Overview of remedies for potentially dangerous and vicious dogs
A dog can be potentially dangerous or vicious in fact, or can be officially declared to be potentially dangerous or vicious. A dog is "dangerous" if it presents an unacceptably high risk of serious injury, even before causing harm; it is “vicious” if it demonstrates a desire to bite people. It can be declared “dangerous,” “potentially dangerous” or “vicious” if the city, county or state laws so provide, depending on the actions of the dog or its owner, including keeper or harborer. From place to place the focus of the "dangerous dog law" can be the actions of a particular dog or the acts or omissions of its owner. California does not permit the official classification of a dog as “potentially dangerous” or “vicious” solely on the basis of its breed, however, despite overwhelming evidence that pit bulls are associated with higher morbidity rates, higher hospital charges, and a higher risk of death than attacks by other breeds of dogs, and kill or seriously injure tens of thousands of pets and hoofed animals annually.
It is important to note that animal control authorities, law enforcement officers and prosecutors can choose to enforce city, county or state laws. The comprehensive provisions pertaining to dogs found in the Food & Agriculture Code do not preempt city and county laws even if they are entirely different than those of the state. This means that a dog owner can be prosecuted under whichever laws seem to best fit the circumstances. If a city code lacks an important remedy (such as a requirement that the owner of a potentially dangerous dog must maintain liability insurance), a prosecutor may choose to proceed under a county code that contains what the city ordinances are missing.
Remedies
Unrestrained:
- Animal control officer may seize and impound dog if provided in city or county code (i.e., Santa Clara County Code secs. B31-20, B31-31).
Public nuisance (chasing vehicles, molesting passers by, noise):
- Animal control officer may seize and impound dog if provided in city or county code (i.e., Santa Clara County Code secs. B31-13, B31-20).
- Infraction and declaration of public nuisance if provided in city or county code (i.e., Santa Clara County Code secs. B31-13, B31-16).
Known propensity to attack, injury and threaten safety of humans or domestic animals:
- Designation as a “potentially dangerous dog” if provided in city or county code (i.e., Los Gatos City Code section 4.10.010(r)(1)).
Trained to guard persons or property:
- Designation as a “potentially dangerous dog” if provided in city or county code (i.e., Los Gatos City Code section 4.10.010(r)(1)).
One biting incident to a domestic animal:
- Civil action for negligence (meaning that the owner, harboror or keeper can be sued for negligent behavior if it caused the incident).
- Civil action for negligence per se (the violation of a city or county ordinance intended to prevent the incident, if the city or county has such an ordinance).
Two biting incidents to domestic animal(s) off the property of the dog owner:
- The remedies given for one biting incident.
- Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).
Two incidents requiring defensive action by a human off the property of the dog owner:
- Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).
One bite incident to a human victim, no severe injury:
- Statutory strict liability for payment of damages (Civil Code section 3342).
- Designation as a "potentially dangerous dog" (Food & Agriculture Code section 31602, city and/or county code if provided per Food & Agriculture Code section 31683).
One bite incident to a human victim, severe injury:
- Designation as a "vicious dog" (Food & Agriculture Code section 31603, city and/or county code if provided per Food & Agriculture Code section 31683).
- Statutory strict liability for payment of damages (Civil Code section 3342).
- Felony or misdemeanor if dog trained to fight, attack or kill and defendant having custody or control of dog failed to exercise ordinary care (Penal Code section 399.5(a)).
- Following conviction, dog euthanized or removed from area (ibid.).
Two biting incidents to human victim(s):
- Private animal control (i.e., special proceeding by "any person" to have dog put down or impose conditions on dog owner; see Civil Code section 3342.5(b)).
- The remedies given for one bite incident to a human victim, no severe injury.
- Statutory strict liability for payment of damages (Civil Code section 3342).
- Common law strict liability for payment of damages by harborer or keeper (case law).
- Malicious injury warranting punitive damages (case law).
- Felony or misdemeanor if dog trained to fight, attack or kill and defendant having custody or control of dog failed to exercise ordinary care (Penal Code section 399.5(a)).
- Following conviction, dog euthanized or removed from area (ibid.).
- City or county ordinance remedies if any (Food & Agriculture Code section 31683).
Dog owner convicted under section 599(A) of the Penal Code:
- Designation as a "vicious dog" (Food & Agriculture Code section 31603).
- Statutory strict liability for payment of damages (Civil Code section 3342).
- Common law strict liability for payment of damages by harborer or keeper (case law).
- Malicious injury warranting punitive damages (case law).
Dog previously determined to be potentially dangerous, recidivist or owner's violation of law:
- Designation as a "vicious dog" (Food & Agriculture Code section 31603 and city and/or county code if provided per Food & Agriculture Code section 31683).
Penalties
Criminal acts
- The acts or omissions which may result in a designation of “potentially dangerous” or “vicious” may be prosecuted as crimes.
- Restitution fine from $100 to $10,000 (Penal Code section 1202.4).
- Restitution to victim of economic losses (Penal Code section 1202.4).
Potentially dangerous dog:
- Licensed.
- Vaccinated.
- Jurisdiction can charge a special fee.
- Dog must be kept indoors or in a securely fenced yard.
- When off the owner's premises the dog must be restrained by a substantial leash under the control of a responsible adult.
- The owner shall notify the animal control department of any new location of the dog.
- These terms and conditions are for 36 months or longer unless there is a change in the circumstances of the dog that mitigated the risk to the public.
- Any violations may be punished by a fine of to $500. (Food and Agricultural Code section 31662.)
- City or county ordinance conditions if any (Food & Agriculture Code section 31683). See topic, below.
Vicious dog
- Euthanasia.
- Conditions to protect the public.
- Special enclosure pursuant to section 31605.
- Owner may be prohibited from having any dog for up to three years if ownership would create a significant risk to the public.
- Any violations may be punished by a fine up to $1000. (Food and Agricultural Code section 31662.)
- City or county ordinance conditions if any (Food & Agriculture Code section 31683). See topic, below.
After conviction under Penal Code 399.5:
- Euthanasia.
- Removal from area.
Additional city and county conditions:
City and county codes often provide similar and more stringent and detailed terms and conditions than those imposed by the state. Some of the most important include:
- Dog must be kept in a locked pen surrounded by a fence.
- Residence must be securely closed if dog inside.
- Dog must be muzzled when in public or people present.
- Owner must have liability insurance with limits of $50,000 (potentially dangerous) or $100,000 (vicious).
Judicial process
Food and Agricultural Code sections 31621-31626 governs the process of declaring a dog to be "potentially dangerous" or "vicious" under other sections of the same code. City and county codes have their own procedures.
Choice of law
As to dangerous and vicious dogs, California statutes do not preempt county and city laws (Food & Agriculture Code section 31683).
Relevant code sections
Civil Code section 3342.5(b)
Whenever a dog has bitten a human being on at least two separate occasions, any person, the district attorney, or city attorney may bring an action against the owner of the animal to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bites have been changed so as to remove the danger to other persons presented by the animal. This action shall be brought in the county where a bite occurred. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.
California Food & Agriculture Code section 31602
"Potentially dangerous dog" means any of the following:
(a) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, engages in any behavior that requires a defensive action by any person to prevent bodily injury when the person and the dog are off the property of the owner or keeper of the dog.
(b) Any dog which, when unprovoked, bites a person causing a less severe injury than as defined in Section 31604.
(c) Any dog which, when unprovoked, on two separate occasions within the prior 36-month period, has killed, seriously bitten, inflicted injury, or otherwise caused injury attacking a domestic animal off the property of the owner or keeper of the dog.
California Food & Agriculture Code section 31603
"Vicious dog" means any of the following:
(a) Any dog seized under Section 599a of the Penal Code and upon the sustaining of a conviction of the owner or keeper under subdivision (a) of Section 597.5 of the Penal Code.
(b) Any dog which, when unprovoked, in an aggressive manner, inflicts severe injury on or kills a human being.
(c) Any dog previously determined to be and currently listed as a potentially dangerous dog which, after its owner or keeper has been notified of this determination, continues the behavior described in Section 31602 or is maintained in violation of section 31641, 31642, or 31643.
California Food & Agriculture Code section 31604
"Severe injury" means any physical injury to a human being that results in muscle tears or disfiguring lacerations or requires multiple sutures or corrective or cosmetic surgery.
California Food & Agriculture Code section 31605
"Enclosure" means a fence or structure suitable to prevent the entry of young children, and which is suitable to confine a vicious dog in conjunction with other measures which may be taken by the owner or keeper of the dog. The enclosure shall be designed in order to prevent the animal from escaping. The animal shall be housed pursuant to Section 597t of the Penal Code.
California Food & Agriculture Code section 31644
If there are no additional instances of the behavior described in Section 31602 within a 36-month period from the date of designation as a potentially dangerous dog, the dog shall be removed from the list of potentially dangerous dogs. The dog may, but is not required to be, removed from the list of potentially dangerous dogs prior to the expiration of the 36-month period if the owner or keeper of the dog demonstrates to the animal control department that changes in circumstances or measures taken by the owner or keeper, such as training of the dog, have mitigated the risk to the public safety.
California Food & Agriculture Code section 31645
(a) A dog determined to be a vicious dog may be destroyed by the animal control department when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that the release of the dog would create a significant threat to the public health, safety, and welfare.
(b) If it is determined that a dog found to be vicious shall not be destroyed, the judicial authority shall impose conditions upon the ownership of the dog that protect the public health, safety, and welfare.
(c) Any enclosure that is required pursuant to subdivision (b) shall meet the requirements of Section 31605.
California Food & Agriculture Code section 31646
The owner of a dog determined to be a vicious dog may be prohibited by the city or county from owning, possessing, controlling, or having custody of any dog for a period of up to three years, when it is found, after proceedings conducted under Article 2 (commencing with Section 31621), that ownership or possession of a dog by that person would create a significant threat to the public health, safety, and welfare.
California Food & Agriculture Code section 31683
Nothing in this chapter shall be construed to prevent a city or county from adopting or enforcing its own program for the control of potentially dangerous or vicious dogs that may incorporate all, part, or none of this chapter, or that may punish a violation of this chapter as a misdemeanor or may impose a more restrictive program to control potentially dangerous or vicious dogs. Except as provided in Section 122331 of the Health and Safety Code, no program regulating any dog shall be specific as to breed.
California Health & Safety Code section 122331
Cities and counties may enact dog breed-specific ordinances pertaining only to mandatory spay or neuter programs and breeding requirements, provided that no specific dog breed, or mixed dog breed, shall be declared potentially dangerous or vicious under those ordinances.
California Penal Code section 399.5
(a) Any person owning or having custody or control of a dog trained to fight, attack, or kill is guilty of a felony or a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment, if, as a result of that person's failure to exercise ordinary care, the dog bites a human being, on two separate occasions or on one occasion causing substantial physical injury. No person shall be criminally liable under this section, however, unless he or she knew or reasonably should have known of the vicious or dangerous nature of the dog, or if the victim failed to take all the precautions that a reasonable person would ordinarily take in the
same situation.
(b) Following the conviction of an individual for a violation of this section, the court shall hold a hearing to determine whether conditions of the treatment or confinement of the dog or other circumstances existing at the time of the bite or bites have changed so as to remove the danger to other persons presented by the animal. The court, after hearing, may make any order it deems appropriate to prevent the recurrence of such an incident, including, but not limited to, the removal of the animal from the area or its destruction if necessary.
(c) Nothing in this section shall authorize the bringing of an action pursuant to subdivision (a) based on a bite or bites inflicted upon a trespasser, upon a person who has provoked the dog or contributed to his or her own injuries, or by a dog used in military or police work if the bite or bites occurred while the dog was actually performing in that capacity. As used in this subdivision, "provocation" includes, but is not limited to, situations where a dog held on a leash by its owner or custodian reacts in a protective manner to a person or persons who approach the owner or custodian in a threatening manner.
(d) Nothing in this section shall be construed to affect the liability of the owner of a dog under Section 399 or any other provision of law.
(e) This section shall not apply to a veterinarian or an on-duty animal control officer while in the performance of his or her duties, or to a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, if he or she is assigned to a canine unit.
California Penal Code section 597t
Every person who keeps an animal confined in an enclosed area shall provide it with an adequate exercise area. If the animal is restricted by a leash, rope, or chain, the leash, rope, or chain shall be affixed in such a manner that it will prevent the animal from becoming entangled or injured and permit the animal's access to adequate shelter, food, and water. Violation of this section constitutes a misdemeanor. This section shall not apply to an animal which is in transit, in a vehicle, or in the immediate control of a person.
