sr-031379-6rSanta Monica, California, March 1, 1979
TO: Mayor and City Council
FROM: City Staff
MAR 1 3~tJ19"'~~
SUBJECT: Authorization for Animal Control Officers to Cite Violators
and Make Arrests Where Appropriate
Introduction
The City's animal control officers are currently enforcing the animal control
regulations of the Municipal Code. An opinion from the City Attorney's Office
states that until the City has enacted an ordinance authorizing such enforce-
ment, a defendant could claim that the action taken by the animal control
officer is unauthorized. In addition, if a citizen fails to sign the promise
to appear, refuses to give identification, or runs from an animal control
officer, the citizen could be placed under arrest. At the present time animal
control officers must call for police officers to make the arrest.
Background
The current status of_the City°s animal control officers is unclear. While
they are currently enforcing the animal control regulations of the Municipal
Code, their authority is questionable without an ordinance according to the
City Attorney's Office. Because there is no municipal ordinance authorizing
animal control officers to make physical arrests of uncooperative suspects,
there is no recourse when confronted by persons resisting, delaying, or
obstructing an animal control officer in the discharge of his/her duties.
The City of Los Angeles currently has an ordinance that gives animal control
officers the power, authority, and immunity to make arrests without a warrant
whenever he/she has reasonable cause to believe that the person to be arrested
has committed a misdemeanor in his/her presence.
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MAR 1 3 1979
TO: Mayor and City Co'=ncil
Alternative Solutions
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1. Do not enact an ordinance and advise animal control officers to
stop enforcement of animal control ordinances.
2. Continue to enforce animal regulations without the legal support
of a municipal ordinance.
3. Enact an ordinance which would authorizeanimal control officers
to issue 0-citations and effect arrests where applicable.
Recommendation
Pass an ordinance as indicated in alternative #3 above, Direct the City Attorney
to prepare an ordinance as suggested in their Opinion No. 78-195 (attached).
Prepared by; James F. Keane
JFK: tm
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CITY ATTORNEY OPINION
Opinion No. 78-195, October 16, 1978
SUBJECT: The Authority of an Animal Control Officer
to make Physical Arrests for Infractions.
REQUESTED BY: Chief .George P. Tielsch, Chief of Police ~`
OPINION BY: Richard L. Knickerbocker, City Attorney
Michael Miller, Deputy City Attorney
QUESTION PRESENTED
1. Do Animal Control officers have the power to
make physical arrests for infractions?
CONCLUSION
1. Yes, but only if the City enacts an ordinance
authorising Animal Control officers to make such arrests.
ANALYSIS
PENAL CODE 836.5
Section 836.5 of the Penal Code gives public officers
and employees, and officers and employees of local agencies the
authority to make arrests. Subsection (a) of Section 836.5 states:
"A public officer or employee;
WHEN AUTHORIZED BY ORDINANCE,
may arrest a person without a
warrant whenever he has reasonable.
cause to believe that the person
to be arrested has committed a
misdemeanor in his presence which
is a violation of a statute or
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ordinance which such officer
or employee has the duty to
enforce."
Although this statute refers only to misdemeanors, ~~
Section 19d of the Penal Code states that: "Except as otherwise
provided by law, all provisions of law relating to misdemeanors
shall apply to infractions .". This statute and its cross-
references refer to the chapter which contains Section 836.5,
therefore, public officers acting under authority of Section
836.5 may also arrest for-infractions.
Subsection (c) of Section 836.5 states: "The public
officer or employee making the arrest shall prepare a written
notice to appear and release the person on his promise to appear,
as prescribed by Chapter Sc (commencing with Section 853.6)
of this tit•le." Section 853.5 of the Penal Code states that
Section 853.6 applies to infractions as well as misdemeanors,
therefore, public officers shall write "S?-cites" rather than
take a person into custody.
UNCOOPERATIVE SUSPECTS
Tf the City's Animal Control officers had the authority to
make arrests for the violations of the Municipal Code relating
to animals, then a physical arrest of uncooperative suspects
could be made pursuant to Section 853.6 of the Penal Code. Also,
a failure to cooperate with Animal Control officers would be a
violation of Section 148 of the Penal Code, resisting, delaying
or obstructing any public officer iri the discharge of his duty
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of office.
Subsection (j) sets forth the reasons for the non-release
of a person by fhe notice of appear procedure. Those relevant
to persons who fail to sign the promise to appear, refuse to give
identification to the Animal Control officer,,or run from an ~~
Animal Control officer are:
(5) The person could not provide satisfactory
evidence of personal identification;
(8) The person arrested demanded to be taken
before a magistrate OB REFUSED TO SIGN
THE NOTICE TO APPEAR.
Section 148 of the Penal Code states:
"Every, person who willfully resists;
delays or obstructs any public officer,
in the discharge or attempt to discharge
any duty of his office, when no other
punishment is prescribed, is punishable
by a fine not exceeding $1,000 or by
imprisonment in a county jail not
exceeding one (1) year, or by both
such fine and imprisonment."
The application of this statute is not limited to
police-officers, but extends to public officers discharging
their duties of office. The failure to cooperate with or
identify phe's self to the Animal Control officers, if they ~*ere
discharging the duties of their office, would be a violation
or Section 148.
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CA RLK:MM:dal ' )/17/78
The current status of the City's Animal Control officers
is unclear. They are currently enforcing the Animal Control
regulations of the Municipal Code. The de ription of duties,
as set forth in the job description of Animal Control officer by
the Personnel Department, states that the Animal Control officer
...
"enforces"animal control regulations as a deputized officer,
which includes making arrests, writing citations, and making
court appearances. The officers are not acting as private citizens,
therefore, Section 837 of the Penal Code which deals with arrests
by private citizens does not apply. The proper statute to
analyze arrests by Animal Control officers is Section 836.5 of
the Penal Code, however until the City has enacted an ordinace
authorizing such arrests, a defendant could claim that the
writing of a Q-cite by the Animal Control officer is unauthorized.
As a private citizen making an arrest, an Animal Control
officer would be required to take a suspect to either a police
officer or a magistrate before such arrest could be made.
THE NEED FOR AN ORDINANCE AUTHORIZING ARRESTS BY ANIMAL CONTROL
OFFICERS.
As noted above, for an arrest by a public officer to
fall without Section 836.5 of the Penal Code, the arrest by
a public officer employee must be authorized by ordinance.
If the Animal Control officers are acting as private citizens,
then the "Q-cite" process would not be appropriate. Also
Subsection (b) of Section 836.5 grants civil immunity to any
public officer or employee acting pursuant to Subdivision (a)
of 836.5. This immunity protects from. lawsuits allegi,ag false
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CA RLK:MM:dal! 0/17/78
arrests .or imprisonment when the employee is acting within the
scope of his authority.
The authority for a local agency to authorize its. officers
or employees to make arrests is set forth in Subsection (d) of
836.5. Since the Animal Control officers are already exertiirq
this authority, an ordinance empowering them to do so should be
enacted. .Attached to this opinion is a copy of the Los Angeles
City Ordinance empowering their Animal Control officeas to make
arrests. The recommended content and form of an ordinance for
Article 4, Chapter 1 of the Santa Monica Municipal Code is:
"In the performance of their duties,
Animal Control officers shall have
the power, authority and immunity
of a public officer and employee
as set forth in Penal Code Section
836..5 to make arrests without caarrant
whenever they have reasonable cause to
believe that the person to be arrested
has committed a public offense in their
presence which is a violation of this
Article, or of any ordinance of the
City of Santa Monica or Penal law of
this state relating to the care, ownership, ~
licensing, treatment and impounding of
animals.
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Respectfully submitted,
~~~ ~~
MICHAEL MILLER
Deputy City Attorney ~.,
RICIIiARD L. KNICKERBOCKER
City Attorney
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