 | Text of Document: | | Your questions are 1) whether under Tennessee law, city police could use tranquilizer guns to “shoot” stray or loose dogs in order to catch them and 2) whether there is any provision that authorizes the training of police to use tranquilizer guns on pets/domestic animals. While there is no one statute or case that addresses these issues, it is my view that the answer to both your questions is no. My opinion is based on reading a number of Tennessee statutes in pari materia (i.e., together), as well as the MTAS Police Manual, and the specific statutes governing veterinarians and medicinal and legend drugs.
First, a tranquilizer gun legally falls under the definition of a “firearm” under Tennessee law. It is found in the general definitions of terms used in connection with criminal offenses:
T.C.A. § § 39-11-106. Definitions
(a) The following definitions apply in this title, unless the context requires otherwise:
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(11) "Firearm" means any weapon designed, made or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use; (emphasis added)
Comment: In addition, a tranquilizer gun would seem to fall under the definition of “deadly weapon,” and although arguably the statute is referring to weapons principally used against humans, it does not actually contain that limitation:
(5) "Deadly weapon" means:
(A) A firearm or anything manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury; or
(B) Anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.....
Comment : The MTAS Police Manual contains a number of provisions that are relevant to your questions. They are included herein for your convenience.
Chapter: 08. Firearms and Other Weapons
Subject Number: 8.00
Subject: Department Firearms Policy
It is the policy of this department that officers shall not unnecessarily or unreasonably endanger themselves in applying these rules to action situations. Officers shall attempt all reasonable means of apprehension and control within their command before resorting to the use of deadly force. Caution shall be exercised for the protection of other life and property whenever a weapon is discharged. Violations of the provisions of this chapter will be considered serious breaches of discipline and will be dealt with severely. (Emphasis added)
Comment: As we discussed, it seems obvious that a tranquilizer shot with the incorrect amount of a drug or into the wrong part of the animal’s body could easily kill, maim or injure it.
Subject Number: 8.61
Subject: Discharge of Firearms
Firearms may be discharged by an officer in the performance of a police duty:
A. at department qualifications or firearms training.
B. at an approved range.
C. for test firing by the crime laboratory.
D. to kill seriously injured or dangerous animals in an emergency. (Emphasis added)
E. when the use of deadly force (as stipulated in Chapter 9) is authorized.
Comment: Subsection (D) does not include tranquilizing a stray domestic animal that is not exhibiting any threatening or dangerous behaviors.
Subject Number: 8.20
Subject: Drawing of Firearms or Other Weapons
Officers shall not unnecessarily draw or display any firearms or other weapon. Officers are justified in drawing a weapon when they perceive a life-threatening situation or threat of serious injury.
Comment: It seems obvious that the shooting a loose or stray dog by use of a weapon for the purpose of catching would rarely qualify as "threatening situation."
Subject Number: 8.51
Subject: Firearms Qualifications
A. All commissioned officers are required to attend regularly scheduled Department Firearms Training and Qualification Exercises, and to achieve a qualifying score in accordance with POST standards at such exercise with the weapon normally carried on duty. Officers shall not carry any weapon type on or off duty with which they have not achieved a qualifying score on the department qualification course. (Emphasis added)
B. Officers who fail to achieve a qualifying score shall attend remedial firearms training. Failure to achieve a qualifying score after attending remedial firearms training may result in suspension. After one week on suspension, officers who have failed to achieve a qualifying score may be terminated for failure to maintain standards.
C. Firearms qualification is required for any firearm classified as an off-duty firearm.
Comment: Since a tranquilizer gun is by definition a “firearm” under Tennessee law, all police officers using this device would have to receive training to use them, assuming they were legally able to otherwise. I suspect that no such training course for police officers exists - or if it does, there is no Tennessee statutory authority for it.
Subject Number: 8.62
Subject: Prohibited Use of Firearms
Officers shall not discharge their firearms:
A. as a warning.
B. from a moving vehicle.
C. at the occupant of a moving vehicle unless deadly force is being used against the officers by that vehicle's occupant(s).
D. unless the officer, in his judgment, has a clear field of fire.
E. unless the officer, in his judgment, reasonably believes that the suspect can be hit.
F. when danger to innocent bystanders and/or property is greater than the danger the suspect poses to them.
Comment: Domestic animals such as dogs and other pets legally are considered to be the personal property of the person(s) who own them. [In the text of 3 C.J.S., Animals, § 3, citing authority in support, it is said that "the trend of modern jurisprudence is to regard dogs as tame domestic animals having value, and to accord them a full and unqualified status as property."
The Police Manual does address chemical and “other weapons” - specifically pepper gas, but there is no mention made of tranquilizers or tranquilizer guns specifically.
Chapter: 08. Firearms and Other Weapons
Subject Number: 8.81
Subject: Use of Chemical weapons - Pepper Gas
The chemical weapon ____________ (insert brand name) approved by the department containing pepper gas as its active ingredient, from hereafter referred to as "pepper gas," is approved for carry by sworn personnel, providing the following criteria are met:
A. The officer has completed the chemical weapons pepper gas training course.
B. The only chemical spray officers are authorized to carry, unless special authorization is given in writing by the chief of police, is pepper gas.
C. The pepper gas canister is carried in an approved holster.
The use of the chemical weapon falls along the Use of Force Continuum between "verbal commands" and actual "hands-on" use of force when resistance is encountered. The basic outline is as follows:
1. physical presence.
2. verbal warning.
3. verbal command.
4. chemical warning.
5. hands-on control.
6. authorized baton.
7. deadly force.
The use of the chemical weapon is intended solely as a control device to enable the officer to carry out his duties in the safest, most efficient and most professional manner with the least chance of injury or harm to either the officer or suspect......
Comment: The absence of any procedures or rules in the police manual addressing tranquilizer guns is fairly reliable evidence that such use is not contemplated, at least under normal police procedures.
Finally, it seems possible that the use of a tranquilizer gun to render unconscious a nomadic toy poodle, for example, could result in problems for the police officer and possible liability for the city:
Chapter: 09. Use of Force
Subject Number: 9.10
Subject: Unnecessary Force
Unnecessary force is defined as any force in excess of that necessary to accomplish a legitimate task. An officer is never justified in using unnecessary force and can be held criminally as well as civilly liable for his acts.
Comment : Tennessee Code Annotated contains chapters addressing Veterinarians and the dispensing of legend drugs - which would include tranquilizers strong enough to render an animal unconscious. See State v. Ashby, 823 S.W.2d 166 (Tenn. 1991) [Valium, a mild sedative, is a Schedule IV controlled substance, and a legend drug] T.C.A. §§ 53-10-101 et seq.
§ 53-10-302. Reports
(a)(1) Any business selling controlled substances reportable to the drug enforcement agency on a wholesale basis to pharmacies, physicians, dentists, veterinarians, clinics, nursing homes, hospitals and any other health care entities in the state shall, upon shipping such substances to Tennessee practitioners or health care entities, submit to the board of pharmacy within thirty (30) days of the close of the month of such shipment the same information contained in the federal drug enforcement agency ARCOS report in a similar format and media acceptable to the federal drug enforcement agency.
(2) If the wholesale registrant is required to submit the drug enforcement agency's ARCOS report on a ninety-day basis, a copy of such report shall be submitted to the board of pharmacy within thirty (30) days after the close of the ninety-day cycle required by the drug enforcement agency.
Comment: The above statute lists the acceptable recipients of controlled substances, as well as the strict reporting procedures in place to track the vendors sales. Law enforcement agencies are not included.
It is considered a privilege to be a veterinarian in Tennessee:
§ 63-12-102. Grant of privilege to practice.
It is hereby declared that the practice of veterinary medicine is a privilege which is granted by legislative authority in the interest of the public health, safety and welfare. To protect the public from being misled by incompetent, unscrupulous and unauthorized practitioners, and from unprofessional or illegal practices by persons licensed to practice veterinary medicine, this chapter is enacted in the interest of the health, safety and welfare of the animal population and the citizens of Tennessee. (Emphasis added)
Comment: The “practice” of veterinary medicine is spelled out in detail in the Code, and clearly includes administering medicines and drugs to animals. Nowhere is there any authority for a police officer to use a tranquilizer on an animal:
§ 63-12-103. Definitions
As used in this chapter:
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(2) "Animal technician" or "veterinary medical technician" means a person who is a graduate of an approved curriculum and licensed in this state and cares for animals being treated by a licensed veterinarian for disease, injury or for the production of serums; leads, wheels or carries animals from quarters to treatment room; lifts animals onto treatment table and applies restraints or holds it during treatment; sterilizes surgical instruments and other equipment, such as rubber gloves, syringes and test tubes, using germicides and autoclave; administers anesthetic, medications and prescribed nursing care under direct supervision of a licensed veterinarian......and such other duties as specified in board rules... (Emphasis added)
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Comment: It is notable that local law enforcement agencies are included in the definition of “certified animal control agencies, ” but it appears strictly for the purpose of housing stray, unwanted or injured animals. Further, the agency must first be certified pursuant to the provisions of chapter 12, Title 63 of the Code.
(4) "Certified animal control agency" means a county or municipal animal shelter, dog pound, or animal control agency, private humane society, state, county or municipal law enforcement agency, or any combination thereof, which temporarily houses stray, unwanted or injured animals and which is certified pursuant to the provisions of this chapter.
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(7) "License" means any permit, approval, registration or certificate issued by the board;
(8) "Licensed veterinarian" means a person who is validly and currently licensed to practice veterinary medicine in this state;
(9) "Practice of veterinary medicine" means to:
(A) Diagnose, prescribe or administer any drug, medicine, biologic, appliance, application or treatment of whatever nature for the cure, prevention or relief of any wound, fracture, bodily injury or disease of animals...
The unauthorized practice of a veterinary procedure is illegal in Tennessee.
§ 63-12-119. Unauthorized practice; criminal law and procedure
Any person who practices or attempts to practice veterinary medicine in this state and makes a charge therefor, without having complied with the provisions of this chapter, commits a Class B misdemeanor for each instance of such practice.
Finally, assuming that a animal tranquilizer is a legend drug, since it cannot be purchased “over-the-counter,” the following statues help clarify how tightly regulated the dispensing of such substances are:
§ 53-10-101. Definition
(a) For the purpose of this part, "legend drugs" means any item which federal law prohibits dispensing without a prescription from a licensed doctor, dentist, optometrist or veterinarian.
§ 53-10-102. Applicability of part
(a) There are exempted from the provisions of this part:
(1) The sale of legend drugs by legitimate wholesale druggists to registered pharmacists and the sale by registered pharmacists to duly licensed physicians, dentists and veterinarians; and
(2) The sale of legend drugs by registered pharmacists to duly licensed optometrists and the possession and use of legend drugs by duly licensed optometrists as authorized by
§ 63-8-102.
(b) The provisions of this part shall apply to the state of Tennessee, its departments, agencies and employees and to the political subdivisions of Tennessee and their departments, agencies and employees, except the department of health and local health departments, which shall be subject to the provisions of § 63-10-216. (Emphasis added)
In other words, the provisions of Chapter 10, Part 1, governing the dispensing of legend drugs applies to the State of Tennessee and its political subdivisions.
§ 53-10-104. Sale, bartering or giving away; procuring by fraud or deceit
(a)(1) It is unlawful for any person, firm or corporation to possess, sell, barter or give away any drug known as legend drugs, as defined in § 53-10-101, except upon the written prescription of a duly licensed physician, certified physician assistant, nurse authorized pursuant to § 63-6-204 or § 63-9-113, who is rendering service under the supervision, control and responsibility of a licensed physician, and who meets the requirements pursuant to § 63-7-123, dentist, optometrist authorized pursuant to § 63-8-102(12), or veterinarian, and compounded or dispensed by a duly registered pharmacist.
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(b) It is unlawful for any person, firm or corporation to obtain or to attempt to obtain a legend drug, or to procure or to attempt to procure the administration of a legend drug, by fraud, deceit, misrepresentation, subterfuge, forgery, alteration of a prescription, by the concealment of a material fact, or by the use of a false name or address; provided, that it shall nevertheless be unlawful for any person to have such prescription filled by mail. The provisions of the proviso to the preceding sentence shall not apply to any person or firm whose mail order business is not more
than fifteen percent (15%) of such person's or its total volume of business.
(C ) Under no circumstances shall a nurse practitioner who has met the additional requirements of
§ 63-7-207(14) to write and sign prescriptions and/or issue drugs nor a physician assistant working under a physician's supervision be delegated the authority to prescribe drugs which involve the following:
(1) The writing or signing a prescription for any drug or medication;
(2) The dispensing or administration of any prescribed or legend drug or medication;
Comment:
In other words, even a physician’s assistant or nurse practitioner cannot legally write a prescription that would result in an unlicenced or certified individual administering “any prescribed drug or medication.”
Even the dispersal of such drugs to law enforcement agencies for the purpose of training drug-sniffing dogs requires one to first obtain a license, and the entire procedure is tightly regulated:
§ 53-14-104. Licenses and permits; applications
(a) No person shall manufacture, obtain, possess, administer or dispense a legend drug or controlled substance for the purpose of scientific research, chemical analysis, instruction or training of detection animals without having first secured a license to do so from the director.
(b) An application for such license shall be submitted on the prescribed form, and shall be accompanied by:
(1) A nonrefundable fee of thirty dollars ($30.00), or in such other amount as set by the board;
(2) Copies of all papers and materials filed with any state or federal governmental agency in connection with the applicant's proposed project; and
(3) A detailed protocol, in triplicate, setting forth:
(A) The nature of the proposed project;
(B) The qualifications of the applicant to engage in such a project;
(C) The proposed quantity of each drug involved;
(D) The measures proposed to provide for security and proper record keeping of the drugs;
(E) Specific provisions for the safe administration or dispensing of drugs to humans (if contemplated), and the proposed method for selecting such humans; and
(F) Such other information as the commissioner may require.
In summary, it is my view that there is no authority that would allow police officers to shoot tranquilizer guns at dogs for the purpose of catching them (or apparently, for any other purpose). There appear to be no police training programs in the use of tranquilizer guns and animals. Police departments and political subdivisions of the state are subject to the strict limitations on receiving and using legend drugs. Only veterinarians and the individuals specified in the statutes may administer medicines and legend drugs to animals. The administration of such a drug to an animal by a police officer would constitute the unauthorized and illegal practice of veterinary medicine in Tennessee, and constitutes a Class B Misdemeanor. Since there are numerous reasons to support the view that police officers are not authorized to shoot tranquilizer guns at domestic animals, this discussion will omit the obvious problems of potential liability, not to mention bad publicity, that the city would likely incur if a citizen’s prized Tibetan Terrier, loitering a few feet outside of its yard, was shot and killed or maimed by a tranquilizer gun manned by one of the city’s finest. |