Can a Virginia animal control officer decide not to seek a dangerous-dog summons after a bite if a statutory defense might apply?

Plain-English summary

The Commonwealth's Attorney for Prince William County asked whether an animal control officer ("ACO") could, after learning of a bite or attack, decide on his own whether one of § 3.2-6540's statutory exceptions or defenses applied, and decline to seek a summons if he concluded the defense was good.

The AG concluded no. Subsection B of § 3.2-6540 says an ACO "who has reason to believe that a canine or canine crossbreed within his jurisdiction is a dangerous dog shall apply to a magistrate" for issuance of a summons. "Shall" generally indicates a mandatory duty (Andrews v. Shepard, 201 Va. 412, 414 (1959)). Once an ACO has an objective basis to believe (the AG cited Rector & Visitors of the Univ. of Va. v. Cuccinelli, 80 Va. Cir. 657, 659 (2010)) that the dog matches the statutory definition, the ACO must apply for a summons. The exceptions in subsection A and the defenses in subsection C are framed in terms that put the determination in the court's hands ("as determined by a licensed veterinarian," "as determined by the court," "shall be found to be a dangerous dog"). Reading the statute in pari materia (Prillaman v. Commonwealth, 199 Va. 401, 405 (1957)) and as a harmonious whole (Va. Electric & Power Co. v. Bd. of County Supervisors, 226 Va. 382, 388 (1983)), the AG concluded that exceptions and defenses are for the court to apply on the evidence, not for the ACO to apply before requesting a summons.

The opinion also noted that the 2006 amendment that added the "shall" was described in the bill's Fiscal Impact Statement as making the petition "mandatory," supporting the same reading.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Section 3.2-6540 has been amended on multiple occasions since 2016, including refinements to the list of defenses and to procedural details. Anyone applying this analysis today should verify the current text of § 3.2-6540 and check for any recent decisions construing the ACO's duties.

Background and statutory framework

Section 3.2-6540 is part of the Comprehensive Animal Care chapter at Title 3.2, Chapter 65. Subsection A defines a "dangerous dog" as a canine that has bitten, attacked, or inflicted injury on a person or companion animal that is a dog or cat, or killed a companion animal that is a dog or cat. Subsection B requires an ACO with reason to believe a dog meets the definition to apply to a magistrate for issuance of a summons requiring the owner or custodian to appear before a general district court.

Subsection A contains a list of statutory exceptions, including dog-on-dog or dog-on-cat attacks where no serious injury occurred "as determined by a licensed veterinarian," intra-household attacks, on-property attacks, and "other good cause as determined by the court." The framing makes clear the exception belongs to the factfinder, not the ACO.

Subsection C lists defenses to a dangerous-dog charge: breed alone, attacks during a crime or willful trespass, provocation, torment, or abuse of the animal, or animal responses to pain, injury, or perceived threats to its kennel, offspring, owner, or property. Each defense is framed as "no canine . . . shall be found to be a dangerous dog" if specified facts exist. A "finding" is a factfinder determination on the record.

The AG also relied on the "shall" / "may" distinction in statutory construction. When the General Assembly uses "shall," courts presume a mandatory command absent contrary indication.

Common questions

Q: What does "objective reason to believe" mean?
A: Per the AG, it means more than subjective hunch. The Cuccinelli circuit-court opinion described it as "some objective basis to [act] . . . which the Court has the power to review." If facts known to the ACO would lead a reasonable officer to conclude the dog met the statutory definition, the duty to seek a summons attached.

Q: What if the ACO is sure the dog was provoked or was acting in self-defense?
A: Under the opinion, that does not let the ACO close the file. Provocation and self-defense appear as subsection C defenses, which are for the court to evaluate at the dangerous-dog hearing. The ACO's role is to bring the matter to the magistrate.

Q: Did the AG address ACO discretion at the investigative stage?
A: The opinion addressed the threshold question of whether the dog met the statutory definition. If facts available after investigation did not amount to an objective basis for that belief, the duty to seek a summons would not be triggered. But once the threshold was met, the duty was mandatory.

Q: Who decides whether one of the subsection A exceptions applies?
A: A licensed veterinarian for the no-serious-injury exception; the court for the "other good cause" exception and for the determinations involving evidence about the circumstances. The AG concluded all of the exceptions belong to the court for the same reason.

Citations and references

Statutes:
- Va. Code Ann. § 3.2-6500 to § 3.2-6590 (Comprehensive Animal Care)
- Va. Code Ann. § 3.2-6540 (dangerous dogs)
- Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Cases:
- Andrews v. Shepard, 201 Va. 412 (1959)
- Rector & Visitors of the Univ. of Va. v. Cuccinelli, 80 Va. Cir. 657 (2010)
- Prillaman v. Commonwealth, 199 Va. 401 (1957)
- Va. Electric & Power Co. v. Bd. of County Supervisors, 226 Va. 382 (1983)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2016/16-009-Ebert-issued.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

September 1, 2016

The Honorable Paul B. Ebert
Commonwealth's Attorney
Prince William County
9311 Lee Avenue, Suite 200
Judicial Center
Manassas, Virginia 22110-5555

Dear Mr. Ebert:

I am responding to your request for an official advisory Opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You inquire whether an animal control officer (an "ACO") has discretion as to whether to request a dangerous dog summons once he learns that a dog has bitten, attacked, or inflicted injury on a person. The crux of your inquiry is whether an ACO, through additional investigation, may determine that even if the dog has engaged in such behavior, a summons will not be requested because of one of several statutory exceptions or defenses.

Applicable Law and Discussion

Virginia Code § 3.2-6540, a statute in Title 3.2, Chapter 65 ("Comprehensive Animal Care"),[1] governs the control of dangerous dogs.[2] With an exception for a police dog engaged in the performance of its duties,[3] subsection A of the statute defines the term "dangerous dog" as "a canine or canine crossbreed that has bitten, attacked, or inflicted injury on a person or companion animal that is a dog or cat, or killed a companion animal that is a dog or cat."[4]

Under subsection B of the statute, any ACO "who has reason to believe that a canine or canine crossbreed within his jurisdiction is a dangerous dog shall apply to a magistrate serving the jurisdiction for the issuance of a summons requiring the owner or custodian, if known, to appear before a general district court at a specified time."[5] The use of the word "shall" in a statute generally indicates that the procedures are mandatory, rather than permissive.[6] Thus, once the ACO has an objective reason to believe[7] the canine is a dangerous dog under the statutory definition in subsection A (that is, that the dog has bitten a person or displayed one of the other behaviors listed) all discretion is removed, and the ACO must go to the magistrate and request a summons.[8]

There are, however, a number of statutory exceptions in subsection A to the general definition of "dangerous dog."[9] One is if the dog has not caused serious injury to a dog or cat "as determined by a licensed veterinarian." Another is "for other good cause as determined by the court."[10] The express language of these exceptions indicates that their application may not be determined by an ACO: one is to be determined by a licensed veterinarian (presumably in evidence presented to the court) and the other is to be determined only by the court. The doctrine of in pari materia means that statutes, or parts of a statute, that have the same general or common purpose or are parts of the same general plan are to be read as a whole.[11] It is also well-established that the several parts of a statute should be interpreted as a consistent and harmonious whole so as to effectuate the legislative goal.[12] It would be inconsistent to say that some of the statutory exceptions may be applied by an ACO while others may not. For this reason, I conclude that application of all the statutory exceptions listed in subsection A are intended to be determined solely by the court after consideration of the evidence. Put differently, the statute does not authorize an ACO to determine if they apply before deciding whether to request a summons from a magistrate.

In addition to the exceptions in subsection A of § 3.2-6540, there are also certain defenses in subsection C of that statute to a dangerous dog charge. In setting forth the defenses, the statute provides, "No canine or canine crossbreed shall be found to be a dangerous dog" based on certain factual situations.[13] The word "finding" refers to "finding of fact," which is defined as "[a] determination by a judge, jury, or administrative agency of a fact supported by the evidence in the record, [usually] presented at the trial or hearing."[14] The requirement of a "finding" thus indicates that this determination is to be made by the court after consideration of all relevant facts, not an ACO before deciding whether to request a summons. Thus, as with the exceptions to the definition of "dangerous dog," set forth in subsection A, I conclude that the defenses set forth in subsection C may be applied only by the court, not by an ACO.

Conclusion

Accordingly, it is my opinion that where an ACO has an objective reason to believe that a dog has bitten, attacked, or inflicted injury on a person, he must apply to a magistrate for issuance of a summons for violation of the dangerous dog statute. It is my further opinion that only a court, and not an ACO, may determine, after consideration of the evidence, whether the exceptions and defenses found in subsections A and C of § 3.2-6540 are applicable.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] VA. CODE ANN. §§ 3.2-6500 to 6590 (2016).

[2] See VA. CODE ANN. § 3.2-6540.

[3] VA. CODE ANN. § 3.2-6540(C).

[4] VA. CODE ANN. § 3.2-6540(A).

[5] VA. CODE ANN. § 3.2-6540(B) (emphasis added).

[6] Andrews v. Shepard, 201 Va. 412, 414 (1959).

[7] See Rector & Visitors of the Univ. of Va. v. Cuccinelli, 80 Va. Cir. 657, 659 (Va. Cir. Ct. 2010) ("In order for the Attorney General to have a "reason to believe," he has to have some objective basis to [act] ... which the Court has the power to review.").

[8] This conclusion is consistent with the applicable legislative history. There have been numerous amendments of the "dangerous dog" statute over the years. One amendment was in 2006, and it enacted the requirement that an ACO "shall" request a summons when he learns of what may be a "dangerous dog." The 2006 Department of Planning and Budget Fiscal Impact Statement for the bill in question (HB340) states, "The proposed legislation expands the authority to petition a court to find a dog dangerous to any law enforcement officer and makes the petition mandatory." (Emphasis added.)

[9] "When a dog attacks or bites a companion animal that is a dog or cat, the attacking or biting dog shall not be deemed dangerous (i) if no serious injury as determined by a licensed veterinarian has occurred to the dog or cat as a result of the attack or bite; (ii) if both animals are owned by the same person; (iii) if such attack occurs on the property of the attacking or biting dog's owner or custodian; or (iv) for other good cause as determined by the court. No dog shall be found to be a dangerous dog as a result of biting, attacking, or inflicting injury on a dog or cat while engaged with an owner or custodian as part lawful hunting or participating in an organized, lawful dog handling event. No dog that has bitten, attacked, or inflicted injury on a person shall be found to be a dangerous dog if the court determines, based on the totality of the evidence before it, that the dog is not dangerous or a threat to the community." VA. CODE ANN. § 3.2-6540 (A).

[10] Id.

[11] See, e.g., Prillaman v. Commonwealth, 199 Va. 401, 405 (1957).

[12] Va. Electric & Power Co. v. Bd. of County Supervisors, 226 Va. 382, 388 (1983).

[13] Emphasis added. "No canine or canine crossbreed shall be found to be a dangerous dog solely because it is a particular breed, nor is the ownership of a particular breed of canine or canine crossbreed prohibited. No animal shall be found to be a dangerous dog if the threat, injury, or damage was sustained by a person who was (i) committing, at the time, a crime upon the premises occupied by the animal's owner or custodian; (ii) committing, at the time, a willful trespass upon the premises occupied by the animal's owner or custodian; or (iii) provoking, tormenting, or physically abusing the animal, or can be shown to have repeatedly provoked tormented, abused, or assaulted the animal at other times .... No animal that, at the time of the acts complained of, was responding to pain or injury, or was protecting itself, its kennel, its offspring, a person, or its owner's or custodian's property, shall be found to be a dangerous dog." VA. CODE ANN. § 3.2-6540 (C).

[14] See BLACK'S LAW DICTIONARY 749 (Bryan A. Garner et al. eds., 10th ed. 2014).