dog

April 12, 2014

The Hon. Katcho Achadjian, Chair, and
Members of the Local Government Committee
Assembly Local Government Committee
1020 N Street, Room 157
Sacramento, California 95814

Re: AB 2343

Dear Chairman Achadjian and Members of the Local Government Committee,

We are writing in opposition to AB 2343 as it now stands and believe it should be amended. First, it proposes that stray cats with no identification at the time the cat enters a shelter—either because the collar was taken off, fell off, a microchip scan failed to find a match or the animal never had one—be adopted out or transferred to “rescue groups” and others immediately, with no right of redemption by the cat’s human family. This is unfair to families who deeply love their cats. Coupled with the fact that California’s stray holding period is already among the lowest in the nation, breaking up families by having them lose all rights in their animal with no reclaim period of any kind is draconian. AB 2343 loses sight of what, in fact, is one of the primary functions and mandates of a taxpayer funded, municipal animal shelter: to provide a safe haven for the lost animals of local people and a place where they can go to find them. Since their taxes pay for these services, families with cats deserve the same amount of time as families who share their homes with dogs to reclaim their companions. Second, at the same time that the bill immediately divests a family of their cat, it allows shelters to immediately give these cats to others who could then sell them for a profit and sell them for any reason whatsoever, not just for purposes of companionship. This will put animals in harm’s way. As a former deputy district attorney, animal control officer, and animal shelter director, I speak out of experience. I also speak out of experience with these particular provisions of the law.

In 1998 and subsequent years, as an attorney for what was the state’s most successful shelter, my organization worked with Senator Hayden to pass and protect the 1998 Animal Shelter Law—the law AB 2343 seeks to weaken, even though it has since come to be regarded as one of the most vital laws protecting homeless dogs and cats in our state’s shelters.

Among other things, the purpose of the 1998 law was two-fold. One of those was to empower the California animal rescue community to save the lives of animals on death row in our state’s shelters. It was an attempt to eliminate the discretion which allowed shelter directors to kill animals other non-profit groups had requested to save, a problem that proved to be epidemic statewide.

Second, it sought to protect people from heartache; the heartache that comes from having beloved animal companions killed or given to others because California, the country’s wealthiest and arguably most progressive state, had a holding period—a paltry 72 hours—that was the second lowest in the entire country. In fact, by increasing it to four days, California retained the second lowest holding period in the nation. But at 72 hours, by the time people were able to miss work and get to the shelter, their animals were often already dead.

Though the bill was enacted into law with overwhelming bipartisan support, it faced fierce opposition by regressive shelters in the state and their mouthpiece, the Humane Society of the United States (HSUS), which is also spearheading AB 2343. Among other things, they argued that these changes would lead to overcrowding and would put animals in the hands of dog fighters and hoarders, a claim that 14 years of experience proved a lie. Wisely, the legislature and governor then, as should occur now, did not listen to HSUS. The rescue rights provision alone, which makes it illegal for shelters to kill animals when non-profit rescue organizations are willing to save the animals, has led to the direct saving of over 46,000 animals a year. The number of animals transferred to rescue groups rather than killed went from 12,526 to 58,939—a lifesaving increase of over 370%, animals who would have been killed had the Legislature listened to HSUS.

One of the reasons their fear mongering failed to materialize is because two vital protections for animals were written into the law, provisions that AB 2343 now seeks to strip away. As it is now written, California law mandates the transfer of animals on death row at shelters only after the holding period (given families an opportunity to reclaim their animal companions) and only to non-profit organizations recognized under Internal Revenue Code Section 501(c)(3). These organizations must have a mission of prevention of cruelty to animals and be adopting animals for purposes of adoption. Such requirements serve important policy considerations. For one, the requirement that they have a mission of animal protection and adoption speaks for itself. Without such a provision, animals could be sold to others for potentially harmful purposes.

Second, the IRS requirement provides oversight by promoting professionalism. For example, they must register with the federal government, and with several state agencies, including the Department of State and Attorney General, as well as requiring that they have an independent Board of Directors. Moreover, experience in California has shown that it results in more individual rescuers incorporating and in fact, statewide surveys in two states found that virtually all rescuers who want to save animals from shelters but are not 501(c)(3) organizations would become so if a similar law were enacted, effectively increasing the professionalism, capacity, and oversight of rescue organizations. This is good for those organizations and it is good for animals.

Yet, under AB 2343, the following would also be considered “rescue groups” for purposes of this law and thus have a mandatory right of access: any individual calling himself an “entity” or two or more individuals, whose purpose includes “the sale or placement of any dog/cat.” Under the express terms of the language, they could be non-profit or for-profit. There is no requirement that the individuals be licensed, have any sort of corporate status, or have standards of any kind. As written, they do not even have to sell animals to be companions, but can be in the business of selling dogs or cats for any purpose whatsoever.

At the No Kill Advocacy Center, we believe that the life of an animal is paramount and when facing a guaranteed death, every effort should be extended to give animals an alternative. But AB 2343 would make an unjustified and potentially disastrous leap which has not proved necessary in those communities across the state and country that have already ended the killing of healthy and treatable animals. To save more animals, we do not need to eliminate existing protections that also safeguard their welfare. Moreover, modifying the provisions of an already proven, effective law that does not require a “fix” to the point that it can potentially undermine, rather than further, the laws’ singular purpose—to protect animals from harm—may needlessly place the larger law itself in jeopardy.

As an attorney involved in the original law who has since worked to pass similar provisions in other states through The No Kill Advocacy Center, I am deeply disturbed by the dangerous precedent introduced with AB 2343, a move that seeks to “fix” a law that is not broken by weakening the protections that it currently affords to our state’s homeless animals. With no analogous licensure requirement or even a requirement that those claiming animals be in the business of selling animals as companions, this law has the potential to lead to tragic outcomes that would not have occurred if the law was kept intact. This not only harms animals, but any disasters resulting from HSUS’ proposed change will no doubt be erroneously misinterpreted as resulting from the law in general, and not the addition of the dangerous provision HSUS is now proposing. This, in turn, may result in the possibility that the Legislature may curtail all rescue access in California, access that now saves the lives of tens of thousands of animals every year by non-profit SPCAs and other adoption organizations. It would certainly kill any hope for responsible rescue access in other states, causing long term damage to the effort to save more lives by empowering non-profit rescue organizations.

Second, at the same time that it empowers people who can sell animals for any purpose, it thoroughly divests families of any rights to their cats if the cat enters the shelter without identification even though the public funds this service and has a right to expect it. This proposal not only undermines the relationship people have with their animal companions and causes them emotional suffering, but it is also illegal. As wrong as it is to talk of cats as “property,” given their current legal status as such and without the benefits that would come with having other legally guaranteed rights at this time in history, in this limited circumstance, their legal status as property confers a protection where no others currently exist: the express intent of the proposal being put forth is to divest a person of his “title” without any reasonable proceeding for that purpose and would manifestly be a taking of property without due process of law. Under the provisions of the Fourteenth Amendment of the Constitution of the United States, and of Section 1, Article 1, such taking would not be within the power of the state or municipality, and the statute purporting to provide therefore would be void. Currently, approximately 7,818 families a year reclaim their cats from California shelters. Consider that unless those cats have identification, HSUS’ proposal would potentially divest that number of Californians from their “property” without due process of law. Given that these animals are often beloved family members, it is naïve to assume that none of those people will step forward to challenge the constitutionality of that law. In fact, it is fair to assume that many of them are likely to do so. (Even if they don’t, our legislators should not be in the business of seeking unconstitutional laws.)

Despite its unconstitutional overreach and ethical concerns, HSUS is no doubt arguing that most cats are not reclaimed and so it will affect few families. But this is dishonest, with 7,818 families annually proving otherwise. It is also based on a flawed understanding of why more cats are not reclaimed. It is not because the cat lacks a family, but because shelters kill them too quickly before their families can find them. In California, the existing holding period is already far from generous: a paltry 72 hours before animals can be killed. 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. 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, 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. HSUS’ 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 HSUS 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.

Finally, AB 2343 is dishonest in its scope and impact. We agree that shelters should be holding animals for longer than 72 hours. And but for a Commission on State Mandates ruling, which HSUS urged, and the Governor’s refusal to fund animal welfare, they would be. But while AB 2343 claims to incentivize the lengthening of holding periods for dogs and cats by eliminating a mandate claim, it will only do so for one year. The legislation promises a one-time budget allocation of $10,000,000 to be shared among all cities and counties which agree to do so. If the Governor or Legislature fails to fund it in the future, and given the history of reimbursement such a scenario is likely, the holding periods will no longer be enforceable, meaning they will either revert to 72 hours or, worse, not exist all, while the harmful aspects of the law will remain on the books, meaning shelters will continue to take cats from the families who love them and give them to those who sell them for undisclosed purposes at a profit, even after other animals lose the benefit of a longer holding period.

As such, AB 2343 does not seek to strengthen or even protect the 1998 Animal Shelter Law; in respect to and as it relates to cats without identification, rescue rights, animal welfare, and holding periods, it seeks to weaken it, not surprising given HSUS’ opposition to it then and HSUS lobbyist Jennifer Fearing’s blind defense of Governor Brown’s failed attempt to repeal it in 2012. Fearing, who has never run a shelter, incredulously told the Sacramento Bee that the law was no longer needed, while using HSUS political muscle to defeat progressive shelter reform laws like it in other states throughout the nation. When it comes to the two dangerous provisions proposed in AB 2343, HSUS is, as it was in 1998 and 2012, on the wrong side of history, the animals, and the people who love them.

Very truly yours,

Nathan J. Winograd