Request By:
Mr. Michael Gene Newton
Animal Control Officer
Union City Highway
Hickman, Kentucky 42050
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions about dog wardens and animal control. You state that you are the animal control officer for Fulton County and the city of Hickman which apparently operate their animal control programs under an interlocal agreement (KRS 65.210 to 65.300).
In an attempt to perform your job in a more efficient manner you ask about being made a county police officer. You ask about additional powers if made a peace officer. You inquire as to whether a dog warden may carry a concealed weapon and whether a dog warden while chasing a dog may go onto the private property of someone other than the dog owner to capture the dog.
KRS 258.215 provides in part that peace officers shall seize and impound any dog which does not bear a license tag or other legible identification which is found running at large. While there are no express statutory provisions requiring the dog warden to pick up dogs anywhere in the county, the fiscal court pursuant to its regulatory powers under KRS 258.195 may require the dog warden to pick up unlicensed or unidentified dogs found running at large. A city, pursuant to KRS 258.365 and KRS 82.082, is authorized to enact ordinances with respect to the regulation of dogs, which are not inconsistent with the provisions of KRS Chapter 258, which could include authorizing the city dog warden to pick up dogs found running at large. Such an ordinance could apply to licensed and unlicensed dogs. In addition, the fiscal court, pursuant to KRS 67.083(3)(a) may enact ordinances dealing with animal control so long as they do not conflict with the provisions of KRS Chapter 258.
A dog warden, however, is not a peace officer and does not have the peace officer's complement of powers, such as the power of arrest, to enforce the provisions of the dog laws. See OAG 76-149 and OAG 75-383, copies of which are enclosed. A dog warden could be made a peace officer by being appointed under the proper circumstances as a deputy sheriff, a deputy constable or a county police officer. The appointment of a dog warden as a deputy sheriff would not be valid if the appointment involved an increase in the number of deputy sheriffs beyond the number established by the fiscal court in the year in which the sheriff was elected. In addition, the appointment of deputy constables is only authorized in counties containing first or second class cities. See KRS 70.320.
Since you have specifically mentioned county police officers, we direct your attention to KRS 70.540 and KRS 67.083(3)(u). The latter statute authorizes fiscal courts to enact ordinances relative to police and fire protection. The former authorizes the county judge/executive to establish, appoint and maintain a county police force. The members of the county police force are appointed by the county judge/executive to serve for a term of one year. Qualifications for membership on the force are set forth in KRS 70.540. Thus, your could not be appointed as a county police officer unless the county judge/executive has also established a county police force or department of which you would be a member.
KRS 527.020 provides in part that a person is guilty of carrying a concealed weapon when he carries a concealed firearm or other deadly weapon on or about his person. Several exceptions are contained in the statute and one provides that peace officers, when necessary for their protection in the discharge of their official duties, may carry concealed weapons on or about their person. Thus, unless a dog warden has been made a peace officer by being appointed, for example, as a county police officer, he is not authorized to carry a concealed deadly weapon.
The last matter we will attempt to address involves a situation where you are chasing a dog and it runs onto the property of someone else. You ask whether you as a dog warden can go onto the private property and pick up the dog.
In OAG 67-406, copy enclosed, we said "running at large" means a dog is off his owner's premises, not on a leash and unattended by his owner or keeper. We have stated that neither a dog warden nor a peace officer may enter onto a private premises without a warrant for the purpose of picking up an owner's unlicensed dog. See OAG 75-383. This opinion presumed that the the dog was on the private property of his owner. There is no reported Kentucky case that we know of dealing with the picking up of an unlicensed dog which is on the property of another person.
In connection with running at large the following appears in 3A C.J.S. Animals § 157:
"Running at large is used in the statutes in the sense of strolling without restraint or confinement as wandering, roving, or rambling at will, and means something more than being unattended. Animals are not at large if they are under the control of a person having the right of control over them."
As to animals on the land of another, the abovementioned authority states that an animal on the land of its owner, or on the land of another, with the consent of such other person is not, unless so provided by statute, running at large. "Under the construction of some statutes, animals trespassing on the land of another are not regarded as running at large, while under others they are so regarded." Note, for example, that the court in
Sayers v. Haushalter, Missouri, 493 S.W.2d 406, 410 (1973), said that the "running at large" provision in the ordinance is intended to prohibit dogs from running at large over public or private property while unattended.
Thus while an unlicensed dog loose and unattended on the public way is clearly running at large and subject to being picked up by a peace officer or a dog warden (when he has been so instructed by his employing governmental entity), the status of a dog which is loose and unattended on the private property of someone other othan his owner is not clear. There are no reported decisions in this state defining "running at large" and the state dog laws do not specifically address the problem of a trespassing unlicensed dog loose and unattended on the private property of another person. Until the General Assembly clarifies the matter, you may have to seek a judicial interpretation of the existing statutory provisions or rely upon local governmental ordinances to specifically define the term in question to the extent that they are permitted to deal with the problem.