
    CIRCUIT COURT OF THE CITY OF RICHMOND
    Eileen McAfee v. City of Richmond et al.
    October 14, 1998
    Case No. LE-1628-4
   By Judge Randall G. Johnson

The court has now read the submissions on the demurrers and plea of sovereign immunity. The court concludes that the allegations in the motion for judgment about the statements made by the individual defendants, when considered in the contexts in which they were alleged to have been made, are sufficient to survive demurrer. The court specifically rejects defendants’ argument that those statements are, as a matter of law, opinions. As pleaded, they do not appear to be opinions. If it was defendants’ intent to be expressing opinions, that is a factual issue that cannot be reached on demurrer. The court also holds that even if the statements are qualifiedly privileged, a factual issue exists as to whether the privilege was abused.

With regard to the plea of sovereign immunity, the court will sustain the plea. The capture and impoundment of stray animals are, in the court’s view, classic governmental functions. In fact, Va. Code § 3.1-796.96(A) requires local governments to perform them:

The governing body of each county or city shall maintain or cause to be maintained a pound in accordance with guidelines issued by the Department of Agriculture and Consumer Services and shall require dogs running at large without the tag required by § 3.1-796.92 or in violation of an ordinance passed pursuant to §3.1-796.93 to be confined therein. The governing body of any county or city need not own the facility required by this section but may contract for its establishment with a private group or in conjunction with one or more other local governing bodies. The governing .body shall require that the pound be accessible to the public at reasonable hours during the week. Nothing in this section shall be construed to prohibit confinement of other companion animals in such a pound.

The court specifically rejects plaintiffs argument that maintaining an animal shelter cannot be a governmental function since private organizations, such as the Society for the Prevention of Cruelty to Animals (SPCA), perform the same function. If that were the test, the fact that there are private security agencies would mean that maintaining a police force is not a governmental function. The fact is that protecting animals and protecting the public from dangerous animals are things government is charged with doing, not something it does as a “nicety.” It is a governmental function.  