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AB 2343: A Postmortem

Assembly Member Mike Gatto Pulls Harmful HSUS Bill After Massive Outcry From California Animal Lovers

cat in shelter

If HSUS’ Wayne Pacelle and Jennifer Fearing had their way, cats (and dogs) in California shelters could have been given to for-profit companies. Thankfully, the bill was defeated.  In an Orwellian response, Pacelle defends this effort, claiming those who opposed their  bill harm animals.

Animal lovers in California can celebrate and breath a collective sigh of relief because Assemblyman Mike Gatto has announced that AB 2343, the harmful bill he introduced several weeks ago at the behest of HSUS lobbyist, Jennifer Fearing, has been pulled. The bill is dead.

As originally written, AB 2343 contained provisions that would have allowed for-profit companies the legal right to take animals on death row in California shelters in order to sell them for any reason, including, potentially, for animal research. The bill also could have stripped Californians who share their lives and homes with cats of the ability to reclaim them by allowing shelters to give those cats to others, including for-profit companies, immediately on intake if the cat entered the shelter without identification. If HSUS had had its way, any cat entering a shelter without ID, either because the collar fell off, a microchip scan failed or the cat never had one, could have been adopted out or given to individuals who want to sell the them, the very moment they arrive at a shelter, the very day the animal becomes lost, and before a family was even given the opportunity to recognize that their cat was  missing, leading to destroyed families and great heartbreak.

In response, a massive public outcry from Californian animal lovers opposed to the bill flooded Gatto’s office and the California Assembly. Emails, phone calls, and a petition signed by over 5,000 animal lovers implored California legislators to reject Fearing’s disastrous legislation. Joining in opposition were shelter directors who were, in part, concerned that certain provisions of the bill would have required them to take people’s animals without due process (a violation of the Constitution that would set have them up for lawsuits). Given the almost unanimous opposition, the bill faced certain defeat and Assembly Member Gatto had no choice but to withdraw it. Whether or not a realization by Gatto that he had been misled and betrayed by Fearing and HSUS CEO Wayne Pacelle played a role in withdrawing the bill is unknown. But in an attempt to salvage his reputation with Gatto and others, and to defend his incompetent lobbyist, Pacelle immediately issued a response defending the bill. The response is vintage Pacelle: duplicitous, confused, superficial, betraying an ignorance of basic principles of animal protection, and a classic case of the pot calling the kettle black.

Despite the fact that AB 2343 was designed to  weaken animal protection, Pacelle starts out by claiming that the bill was a sincere attempt to reduce killing in California. Second, he claims that anyone who challenges his corrupt agenda is divisive and therefore harming the animal protection movement. Finally, he claims that those who opposed Fearing’s bizarre, disastrous, and hopelessly bungled bill—which neither addressed the true cause of shelter killing nor attempted to mandate any of the protocols that have already allowed shelters across the nation to end the killing—were working to maintain “the status quo” by failing to allow for “new strategies” to “help animals facing euthanasia in the months and years ahead.” Given that Pacelle continues to ignore existing No Kill success, his statement borders on the absurd. In fact, given HSUS’ ongoing campaign to kill genuine shelter reform legislation across the nation (some of which have passed over HSUS objections and are responsible for saving tens of thousands of lives every year), that Pacelle would now co-opt the language of the No Kill movement to cloak an anti-animal agenda as a genuine attempt at helping animals is breathtaking in its gall. It does, however, show that Pacelle is under tremendous pressure to sound like a genuine advocate for an end to shelter killing. Unfortunately for the animals, Pacelle finds it easier to ignore existing No Kill, while remaining willfully ignorant of what it actually takes to achieve it.

And because of that, yet again, HSUS’ half-baked, ill-informed, and even harmful forays into shelter legislation required sincere and educated advocates including animal law attorneys and my organization, the No Kill Advocacy Center, to drop all our important animal protection work and work to defeat it. As UCLA Law Professor Taimie L. Bryant wrote,

[I]t’s worth reflecting on how much time and energy was expended on a bill that was massively confusing, complex, and riddled with unintended consequences. I was particularly sobered by the posting on Sutter’s Friends of a rabbit rescuer who expressed concern about the “for-profit” provision in AB 2343. How much more helpful to rabbits could that person have been if she had not had to worry about this harmful legislation? Similarly, the day before the bill appeared in its true form, my students and I had had the opportunity to work with a talented attorney who has the experience and thoughtfulness to help us develop a proposal for a new way of conducting dangerous dog hearings. Instead of using the weekend to put together the ideas that came out of that session, I had to drop everything to address as quickly as possible the most dangerous aspects of AB 2343. Shelter managers, leaders of shelter organizations, and leaders of local and national animal protection organizations had to drop the work they were doing, as well, in order to begin work on AB 2343. Individuals concerned about early reports on AB 2343 started reacting quickly by sending comments to members of the Local Government Committee. All of that time and energy was diverted from activities that could have enriched all of our lives and the lives of those we care about, including animals.

Despite Pacelle’s ignorant assertions to the contrary, we don’t need to experiment with deadly legislation to determine how to end the killing in animal shelters. We already know how to do so and we already have legislation that has proven to dramatically decrease it. So why don’t we have more laws like it? Because HSUS won’t let us pass these bills, banding together time and again with regressive kill shelters, to defeat them.

As early as last month, Jennifer Fearing ordered an HSUS lackey in Minnesota to kill legislation in that state which, among various other proven and necessary improvements, would have ended heart sticking, banned the gas chamber, and mandated rescue access—a provision which HSUS opposed when it passed in California but has increased lifesaving in that state by 370%. In places where true shelter reform laws introduced by No Kill advocates have passed, they have been wildly successful. In Austin, Texas, a local ordinance mandating that the local shelter stop convenience killing in favor of the programs and services of the No Kill Equation led to save rates of over 90%. Did the Fearing bill contain any of the provisions that allowed Austin to achieve this immediate success? No. In Delaware, a similar law that passed in that state in 2010 has already decreased killing by a whopping 78% statewide. Did the Fearing bill contain any of the provisions that allowed for such a dramatic, statewide decline in killing? No. Neither Austin nor Delaware nor any of the other several hundred communities that have ended the killing got there by stripping families of the right to reclaim their lost animals or by mandating the release of shelter animals to for-profit groups who sell dogs and cats. And why would they? Neither of these things have anything to do with addressing the true cause of shelter killing: directors who are content to go on killing in the face of proven, viable, lifesaving alternatives; alternatives Pacelle and Fearing continue to tell shelter directors they could go on ignoring if that is what they prefer to do.

Even though the bill could have had disastrous consequences for animals had Pacelle and Fearing had their way, and I in no way wish to diminish the irresponsibility of attempting to do so, there is a silver lining to this entire debacle and it is this: while HSUS staffers and Pacelle continue to behave as though it is still 20 years ago before the advent of the modern No Kill movement, continue to wallow in failure and engage in wilful blindness to the solution the rest of us have embraced with enthusiasm, and while they continue to parrot the charade that ending shelter killing (or, as Pacelle still archaically and euphemistically likes to call it, “euthanasia”) is a disease for which there is no cure, Pacelle can no longer cavalierly celebrate the status quo. He has to at least pretend that he thinks it is unacceptable and that HSUS is trying to do something about it.

As No Kill advocates seek to reform their cruel, kill-happy shelters by openly and publicly exposing them—an act HSUS once successfully kept in check by maligning as heresy—HSUS is no longer asking us to join them in celebrating the institutions responsible for the systematic killing of millions of animals every year. Gone is the language of “pet overpopulation;” gone is their promotion of “National Animal Shelter Appreciation Week.” In their place is language finally recognizing that which No Kill advocates have known and been seeking to address for nearly two decades now: that it is our shelters that need reforming, not the American public. Yet, tragically, while HSUS’ language may be changing due to our intense pressure, their actions, as AB 2343 demonstrates, have yet to. HSUS is still asking us to join them on Fantasy Island, though one of a different kind. While we are no longer directed to pass the blame to the public and accept the killing as a “kindness,” we are asked to believe that while our shelters need reforming, we have no idea how we can do so and therefore must “experiment” with “new strategies.” This is a new and different kind of lie for Pacelle, but it is just as deadly and just as defeatist all the same.

As we bury HSUS’ dead legislation, I want to close this latest chapter in the tragic and ongoing “HSUS vs. the No Kill Movement” story with a postmortem. We learn from the past by studying it so that in the future, we can be wiser and better prepared to face its challenges. As HSUS evolves its strategy, as it seeks to co-opt the language of the movement to end shelter killing but not its mission, we must be on guard against Pacelle’s efforts to cloak his disingenuous and dangerously misinformed agenda in the mantel of No Kill. Following is a response to Pacelle’s ongoing, yet evolving, pattern of duplicity:

According to Pacelle, “Giving shelters the option to move much faster on adoption and transfer to rescues when they are handling cats without identification is a novel, progressive step forward. Cats in this class are very unlikely to be reclaimed by owners – for 15 years, the reclaim rate in California has stood at two percent. We can give 10 times that number of cats a much better chance at survival by moving them out soon after intake, rather than forcing shelters to hold them for a set number of days before making them available.”

Pacelle doesn’t tell you why such a small percentage of cats are reclaimed by their families because he doesn’t know himself, which is why AB 2343 would have made things worse. First, more cats are not reclaimed because shelters kill them before their families have a reasonable chance to find them. In California, the existing holding period is a paltry 72 hours. Only one state has a holding period lower than California. The answer here is to increase the holding period, not shorten it. Second, there are many reasons why cats end up at shelters as strays, but a number of them are not even lost. Frequently, they are taken to the shelter by neighbors or others who assume they are lost when they are not. Once again, these cats are killed because of the inadequate holding period and not because there is no one to claim them. Third, low return rates for cats are also caused by misguided lost and found techniques on the part of an uninformed family, because shelter staff are often ignorant of proper techniques to search for lost cats and thus fail to educate families in a manner that will lead to fewer impounds and greater reclaims, because some cats do not enter shelters for several weeks after a family has already stopped looking (fearing the worst), and also because of the failure of shelters to match lost reports with the found cats entering their facilities.

The answer to the various reasons as to why more cats are not reclaimed by their families is not to strip families of their rights by eliminating a reclaim period altogether when those cats lose their collars or don’t have one, but by regulating shelters and mandating training so they do a better job. In fact, shelters which do a better job at these things vastly increase their reclaim rates for cats: 22% across all shelters in Colorado (about the same as the dog reclaim rate nationally), and even higher in other North American communities. The Pacelle-Fearing proposal not only counters compelling evidence which disproves the perceived “need” for it, but would in fact exacerbate, rather than fix, the causes of the currently low reclaim rates of cats in California shelters. In other words, the fault for low reclaim rates for cats lies with the shelter and Pacelle is using the poor performance of those shelters as a reason to undermine protections that people in California have a right to expect of their tax-funded institutions. Finally, regardless of the numbers, that not allowing people any time to reclaim their cats is an obvious threat to the deep and meaningful relationship between people and their cats must be pointed out to HSUS which has grown astronomically wealthy trumpeting the value of the “human-animal bond” adds another layer of absurdity to the already bewildering necessity of this discussion, one based on HSUS’ astounding assertion that the citizens of California should immediately lose claims to their animals—often cherished family members—should they ever accidentally end up at a shelter they fund in part expressly for such purpose.

According to Pacelle, studies prove that giving cats to others on intake “will reduce overcrowding, disease, and result in more lives saved.”

None of the studies stand for the proposition Pacelle, Fearing, and others at HSUS claim. The first is a study which shows that the likelihood of an animal being reunited with their human caretakers is greater for cats if they are allowed to remain where they are rather than being impounded: 13 times more likely to be returned home by non-shelter means (such as returning home on their own) than through the pound. Had Pacelle actually looked at that study, he would have immediately seen why these results do not support the HSUS bill. It would be one thing if they added a provision, as I recommended, that the holding period should not apply for cats who are sterilized and then returned. It does not further the conclusion of this study to give the cat to someone else.

The second study purports to show that the longer a cat is in a shelter, the greater chance of the cat getting sick, which then results in the cat being killed for being sick. That is why Pacelle claims it will reduce disease and save more lives. What he ignores is that shelters should not be killing sick cats. They should be providing them medical care, something that has been written in true shelter reform bills in Texas, New York, Minnesota, and even California, all of which HSUS has fought against. More on point, 72 hours—the current enforceable California holding period for stray cats—is already early release. According to the study, between day 0 and day 5, there is only a 0.01 increase in the number of sick cats. Being allowed to shorten the hold from 72 hours to zero will barely move the dial on feline disease. What it will do is codify the pernicious idea that cats’ relationships with their families are less valuable than dogs, and put California in the position of going backward instead of forward in the sheltering field.

Similarly, a third study relied on by HSUS looked at factors that lead to the development of feline respiratory disease in shelters. But contrary to Pacelle’s claim, that study found that length of stay wasn’t really the determining factor. No surprise as Pacelle didn’t read that one, either. A poorly run shelter leads to disease, not how long a cat stays in the shelter. Poorly run shelters tend to have longer lengths of stay, terrible adoption programs, and worse shelter medicine practices than progressive, successful shelters.

Reforming shelters to ensure they are run with compassion, integrity, and in line with the most up-to-date and innovative sheltering and veterinary protocols would go a long way towards reducing disease rates. The choice is not, and never has been, that we either allow our shelters to make homeless animals sick through shoddy cleaning and care, or we must “protect” animals from the poor care of shelters by allowing shelters to give cats to others, including for-profit companies, the moment they enter the shelter. Rather, the animals deserve, and as taxpayers we have a right to expect, that our taxpayer funded institutions do the job they are paid in part to do: care for lost animals in a safe, clean environment until they can be reclaimed by their families.

Although it should go without saying that animals should not be released to for-profit companies who want to sell animals for harmful purposes like dissection or animal research, had someone with any intelligence at HSUS drafted the bill and they were committed to immediate release for cats in order to free up cage space, they could have done it in a way that did not cause immeasurable heartbreak by breaking up families or by violating the constitution: allow shelters to place cats in the care of non-profit rescue groups immediately, but give families the same right of reclaim for the first 72 hours as if the cats were still in the shelter, with a mechanism for people knowing that their cats are still in the legal and constructive custody of the shelter.

In fact, I was working on compromise language on this score with HSUS when Fearing sabotaged the talks in order to defend the gas chamber and heart-sticking in Minnesota because a regressive, kill shelter asked her to. Such a bill would have met the goals Pacelle claims he is seeking, while protecting animals and their human families. But that of course requires someone intelligent (or at least truly dedicated) working at HSUS. And when your boss is Wayne Pacelle who lacks vision, pretends to know more than he does, has never run a shelter, cites studies without reading them, and betrays the animals simply because a kill shelter asks him to (or a football team offers his organization $50,000), that is not likely to happen.

According to Pacelle, “advocates in California were divided on the issue, with much of that dissension based on a false understanding of the bill and the political process.”

In truth, it was Pacelle and Fearing who had a false understanding of the bill and the political process. In addition to their own incompetence, these are just two of the many reasons why HSUS wrote such a bungled, badly thought out, disastrous bill. In fact, given the manner in which Pacelle described the bill in the first public statement about the bill, it is virtually certain that he did not even bother reading it before he sent out a plea for people to write in support of it. Again, I turn to Professor Bryant, the primary author of the 1998 Animal Shelter Law which AB 2343 sought to weaken:

[P]eople should consider the possibility that Wayne Pacelle had not actually read AB 2343 before he sent the alert and that he was instead relying on someone else’s judgment about AB 2343. Look at the alert and ask yourself if there is any indication that he read it. Certainly he does not encourage YOU to read AB 2343. He appears to expect blind reliance, perhaps just like his own. A scary possibility is that no one at HSUS other than Jennifer Fearing actually read AB 2343 before that alert went out. And even scarier is the possibility that Assemblymember Mike Gatto has not read AB 2343, either.

Even if Pacelle did read the bill (a dubious proposition), it would be wrong to assume that simply because he oversees a large, national animal protection group, that he is therefore qualified in matters of companion animal legislation or even sheltering in general. First of all, neither he nor anyone in the HSUS sheltering department has ever worked in a shelter, let alone one that has created No Kill. And Fearing, their chief lobbyist on sheltering legislation (and the primary architect of the bill) has likewise never run a shelter, never worked in a shelter, is not a lawyer, and as the disastrous implications of AB 2343 which she wrote reveal, ignorant of basic principles of law. Despite $140,000,000 in annual revenues, HSUS typically does not seek out the “best and the brightest” to represent shelter animals. And no better proof of that exists than AB 2343 which had the potential, in one fell swoop, to preempt all local laws against selling shelter animals to research, eliminate holding periods entirely, and give for-profit companies more rights to cats than their human families.

According to Pacelle, opposition to AB 2343 means “Keeping the status quo, and failing to develop and apply new strategies, is very unlikely to help animals facing euthanasia in the months and years ahead.”

To call his claim Orwellian, given that both he and Fearing have made a career out of fighting shelter reform and defending the status quo, would be an understatement. As recently as one month ago, they fought a bill that would have banned the gas chamber, banned heart-sticking, ended convenience killing, stopped the all-too-common practice of immediately killing animals who are surrendered by their families with no holding period or chance at adoption at all, and would have made it illegal for shelters to kill animals when non-profit rescue groups are willing to save them. In fact, HSUS fought against the 1998 Animal Shelter Law in California when it was first introduced, supported the claim that it should not be enforced, and supported the Governor’s attempt to repeal it in 2012. We shouldn’t be surprised that they would introduce a bill to weaken it now. Across the nation and on numerous occasions, HSUS has worked with the directors of regressive kill shelters to successfully defeat shelter reform laws. The HSUS record on this score is without mercy.

According to Pacelle, “when lawmakers are put in the position of having to choose between different segments or players in the animal movement, it doesn’t inspire confidence in our cause, and it leaves lawmakers confused.”

Wrong. Not fighting AB 2343 out of misplaced deference to a corrupt organization just because it claims to be about animal protection even as its legislation would subvert rather than further that very outcome would have been a dereliction of our duty to animals, not the other way around. Pacelle’s statement also asks us to buy into a false assertion that a blow to HSUS is a blow to the animal protection movement itself. But HSUS is not the animal protection movement and the animal protection movement certainly isn’t HSUS. To the extent that we can educate legislators and the American public to the fact that HSUS is, in truth, a lobbyist for killing shelters, rather than for the animals those shelters kill, the closer we come to neutralizing their harmful opposition to No Kill and their ability to pursue dangerous bills such as AB 2343. HSUS may financially benefit from their name and a public image as an animal protection organization, but that is not how they actually behave. Pretending otherwise would not result in substantive improvement for animals entering shelters, it would undermine it.

The fact that animal lovers won on this score and Gatto was forced to retract a very harmful bill is in no way a disservice to animals; it protected them. And Mike Gatto learned a valuable lesson: when it comes to shelter reform, blind faith in HSUS puts you on the wrong side of the animals, animal lovers, progress, and history. To the extent that this might make Gatto and others less likely to introduce harmful legislation proposed by HSUS in the future, the animals, again, come away the winners.

The death of AB 2343, the neutering of Pacelle, the eroding of HSUS’ reputation among legislators, and the humiliation of Jennifer Fearing who went into hiding when the controversy erupted by pretending to be on vacation and refusing to answer any questions about the bill she wrote, are good for animals entering shelters.

Though HSUS took a huge black eye from this incident, the animal protection movement is stronger for it. Together, we demonstrated that when it comes to our beloved companion animals, it is their true interests, and not the prerogatives of corrupt organizations like HSUS which feed off their plight, that matter most. And just as important, we sent a strong, clear and unequivocal message to HSUS that they neither speak for us nor the animals, and that they pretend to do so at their own peril.

Well done, fellow animal lovers, well done.


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