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Hayden Law & No-Kill
Legislation con't
https://www.maddiesfund.org/what-is-no-kill.htm
Untangling the Problem
Untangling this problem was accomplished through surveys of a representative
sampling of shelters, interviews with former shelter directors, and
consultations with rescue groups. It became clear that there wasn't one easy
solution to the problem of so many deaths in our shelters. It was equally clear
that previous legislative attempts to regulate this field were haphazard and
incomplete. Prior to Chapter 752, laws affecting shelters and individual finders
of pets were scattered throughout several different Codes. This made it
difficult to know one's responsibilities. The first task of Chapter 752 was to
bring together different existing requirements, which, if followed, would
enhance the opportunity for pets to be adopted or reunited with their families.
For example, under the California Penal Code Sections 597.1 and 597f, animal
shelters are required to keep stray animals in good enough condition for
"redemption" by the owner. As veterinary care facilities and as holders of
others' property, shelters were required to keep records. Not knowing this, many
shelters have kept inadequate records. Now the list of records is embedded
directly within the Food and Agricultural Code, where it should be easy for
shelter managers to find.
Unfortunately, since so many shelters did not already know their
responsibilities, many of Chapter 752's provisions seem new to them. Chapter 752
seems, to the casual reader, to involve many new responsibilities for
individuals and shelters, but, in fact, Chapter 752 involves relatively few new
responsibilities. What is primarily new about Chapter 752 is its emphasis on
seeking life-saving solutions for lost and homeless pets. In the next few
paragraphs, I will describe statutes within Chapter 752 that affect individuals,
shelters, and rescue organizations. Some of them are new to Chapter 752; some
are restatements of obligations that pre-dated Chapter 752 but which are
restated or referred to by Chapter 752.
A. Owner/finder responsibilities. Finders of others' property have long been
required to make all reasonable efforts to find the owner. To help finders of
living animals, it is now mandatory that public shelters and their contractors
provide a place for lost/found notices to be posted. This should increase the
willingness of individuals to house animals whose companion humans will be able
to find them, even if the animal is not at the shelter. They (and shelters) are
also newly allowed to receive freely offered or advertised rewards (i.e., they
may not demand a reward in addition to restitution for necessary expenses to
maintain the pet). At the same time, housing lost animals comes with the
obligation to treat them "kindly," which now explicitly includes "necessary
veterinary care." This provision was added for the lost/abandoned pet's
protection and to facilitate the caretaker's recovery from the pet's owner of
veterinary expenditures necessary to preserve the life and health of his/her
companion animal. Reimbursement from the owner for necessary expenditures is
allowed under Civil Code §1833.
Chapter 752 reinforces the need to protect animals by requiring that individuals
who cannot care properly for a rescued animal, including veterinary care, turn
him or her over to an appropriate animal care facility. This new provision under
the Civil Code allows anti-cruelty enforcement against "hoarding" or
"collecting" animals without having to prove a mental state of "intent to cause
harm," a requirement under Penal Code anti-cruelty statute enforcement. Chapter
752 allows a judge as a condition of probation to prevent a convicted animal
abuser from owning, care for, or having any contact with animals. It also
explicitly provides that convicted animal abusers make restitution for care the
animal received while held as "evidence" of the abuse.
B. Shelters' responsibilities. Three changes have been particularly
controversial: (a) reinterpretation of what is a reasonable time to give an
owner to find and redeem his/her companion; (b) prohibition on the immediate
killing of owner-relinquished companions; and (c) emphasis on lifesaving
solutions to the problem of homeless companion animals.
(a) Reasonable redemption time periods. Since 1963, shelters were required to
hold apparently lost animals so that they could be found and reclaimed by their
companion humans. Killing companion animals immediately would be a violation of
that law, but a specified holding period was not enacted until 1967. In that
year, a 72-hour (measured from time of capture) holding period for dogs was
introduced. In 1980, the same holding period was introduced for cats. The
reasonable time for redeeming lost dogs and cats was 72 hours, but under other
laws, the reasonable time for owners to reclaim their companions has been
defined as 5 days. For example, under the Animal Welfare Act, shelters selling
animals to research facilities have to hold the animals for 5 days to give the
owner time to reclaim him or her. Under California's vicious dog law, owners
must receive 5 days notice to contest the designation of "vicious dog" and to
reclaim their dog. Ironically, owners of troublesome dogs were given much more
time than owners of simply lost dogs!
With Chapter 752, Senator Hayden brought the interpretation of a reasonable time
period to reclaim animals into line with other laws and with the public's
expectation of a reasonable period of time to reclaim their companions. Chapter
752 increased the holding period to 4 or 6 days, depending on the shelter's
open-to-the-public hours. When California's holding period was 72 hours, there
was only one state with a shorter holding period-- Hawaii, with a 48-hour
holding period. Now that California has increased the holding period, we have
joined the bottom six states in the country in terms of holding period. By
national standards, our current holding period is far from generous. The holding
period structure is unusual, however, in being tied to hours of operation. If a
particular impounded pet is made available one weekday evening until at least 7
p.m. or one weekend day, that particular pet must be held only 4 days, not
counting the day of impoundment. All pets will have this possibility if a
shelter is open during hours the working public can come on 1 or 2 spaced
evenings, depending on whether the shelter is open on weekends. If it is not
possible for a particular impounded pet to be seen by the public one weekend day
or one weekday evening until at least 7 p.m., then the shelter must hold the pet
for 6 days. The first three days are "owner-redemption" days, although would-be
adopters can ask for the pet when the first three days are over. During the
second three days, the pet may be adopted immediately or reunited with his/her
companion human.
Chapter 752 reinforces prior law that provided for the impoundment of stray
animals, not just cats and dogs. Chapter 752's holding periods apply to other
legally allowed companion animals.
(b) Prohibition of immediate killing of owner-relinquished pets. People who
cannot keep their companion animals often bring them to shelters. Mistakenly
taking the name "shelter" literally at face value, many of these people expect
their companions to be sheltered for a reasonable period of time for adoption
(unless the animal is suffering and in need of euthanasia). They frequently
bring in the companion’s bed, toys, and food, but those companions have usually
been killed before the owner even starts his or her car in the parking lot. This
was the case despite the facts that as many as 75% of owner-relinquished pets
are placeable and that shelters have had no legal obligation to take in
owner-relinquished companions, let alone to kill them. After Chapter 752, they
still have no obligation to take in owner-relinquished companions. However,
Chapter 752 states that if they take in owner-relinquished companions, they
cannot immediately kill and dispose of them at taxpayer expense. Those animals
must be given 1 business day (not counting the day of impoundment) to be
redeemed by their true owner, in the event that he or she was surrendered by
someone other than his or her true human companion, and another business day to
be available for immediate adoption or redemption by the real human companion.
The holding period does not apply to animals in need of immediate euthanasia.
(c) Emphasis on saving lives. In policy sections within the Civil Code, the Food
and Agricultural Code, and the Penal Code, Chapter 752 promotes adoption of
healthy and reasonably treatable animals whenever possible. In the absence of
policy statements to the contrary, the de facto state policy has been to kill
lost and homeless companion animals. With some notable exceptions, shelters have
failed to provide hours the working public can visit the shelters for adoptions
or redemptions of their companion animals. They have failed to provide
lost/found services. They have failed to keep records adequate to find pets
within the system. They have failed to use freely offered microchip scanning
services. They have failed to provide adequate veterinary health care for many
animals. They have resisted working with the rescue/adoption community. They
have failed to raise funds aggressively to promote lifesaving methods to spare
the lives of placeable companion animals. They have used tax dollars to kill
animals they didn’t have to accept in the first place ("owner-relinquished"
pets) and to kill animals whose companion humans never even had a chance to
locate them.
Our shelters have a very bad track record when it comes to adoption. In
California in 1997 with a statewide human population of close to 33 million,
only 142,385 cats and dogs were adopted from our shelters. 576,097 were killed.
These statistics belie the breast-beating of shelters and sheltering
organizations that have claimed that the longer holding period will mean the
killing of placeable pets to make room for unplaceable strays. The sad fact is
that most animals are killed in our shelters, no matter what their condition.
The new policy code sections in Chapter 752, which affirm lifesaving wherever
possible, do not contain "duty language" upon which lawsuits can be brought, and
the statutes state specifically that they cannot be used in actions for monetary
damages against shelters. Nevertheless, policy sections do guide interpretation
of statutes that do contain specific obligatory conduct (i.e., "duty language").
The statutes that create specific, actionable duties require the following:
specific holding periods for all impounded companion animals, maintenance of a
way for the public to post lost/found notices, release of a companion animal
scheduled for death to a nonprofit animal rescue/adoption group, if requested by
the group; temperament testing of feral cats before denying to feral cats the
extended holding period; use of all reasonable means to locate an animal's human
companion; the holding of pre- or post-seizure hearings so that individuals can
contest the seizure (and destruction) of their companion animals. Policy code
sections guide those with duties as to why those legal duties came about and how
to fulfill them. They also come into play when lawsuits are initiated due to
alleged violations of specific duties. They help in resolving ambiguity about
the purposes and appropriate means of fulfilling one’s duties under the law. So,
for example, if a shelter erred on the side of finding all fractious cats to be
feral in order to justify killing them earlier, it would be violating the policy
preference to spare life when possible. Another example is throwing up
unnecessary roadblocks to nonprofit rescue and adoption groups so that they can
have fewer animals. This not only violates the law itself, but also violates the
spirit of the policy sections, which promote lifesaving. If shelters are
concerned about cruelty or "hoarding," they have many legal avenues of dealing
with it, some provided by Chapter 752 itself, without obstructing the vehicle
provided for animals to be rescued from the shelter.
C. Rescue group responsibilities. Before Senator Hayden introduced SB 1785,
rescue and adoption groups voiced concerns about inconsistent access to shelter
animals for the purpose of finding them homes. As frequent visitors to the
shelters, rescuers saw systemic problems and inhumane treatment of animals, but
their access to animals was conditioned on keeping their mouths shut. Under
Chapter 752, rescue/adoption groups with IRS Code 501(c)(3) status are not
dependent on shelter approval to adopt pets from the shelter. Their right to
take these animals is no longer legally premised on silence as to shelter
practices and violations of the law.
However, rescue/adoption groups are subject to all the requirements of
individuals who find or house companion animals. They must provide humane and
"kindly" care. In addition, although rescue/adoption groups with IRS Code
501(c)(3) status can take out a shelter animal right before he or she is due to
be killed, they must be assertive in maintaining awareness of the animals in the
shelter and in making requests for animals. They may not take out animals and
subject them to cruel circumstances, even if it is in the interest of keeping
them alive, without running the risk of the heightened punishments for animal
cruelty under Chapter 752's amendment of anti-cruelty provisions. One proved
case of animal cruelty can now, under Chapter 752, result in shutdown of an
entire rescue/adoption operation.
Reactions to Chapter 752 Within the Animal Welfare Community:
Shelters already moving in the direction of saving lives through spay/neuter,
owner-reunification, and adoption have been heartened by Chapter 752's approval
of their methods. Some have expressed relief for the animals in less progressive
shelters. Chapter 752 could not redirect the flow of funds for prevention and
lifesaving to the extent that those activities are prioritized by the best
managed shelters in the state, but, at least, it was able to shift the use of
funds somewhat so that all impounded animals in California have some chance of
being seen, reclaimed, or adopted.
A few shelters and sheltering organizations have accused Senator Hayden, the
consultants who worked on Chapter 752, and the Legislature/Governor of naivete
that will hurt animals. Here are some of the criticisms of Chapter 752:
(a)"Longer holding periods means that placeable pets die because unplaceable
pets must be housed." This is a favorite criticism, but it is a red herring. The
horrible fact is that the vast majority of companion animals die in our shelters
regardless of their status. Some of our worst shelters protest that they want to
kill unadoptable pets so that they can keep the adoptable ones, when, in fact,
they kill almost everyone and have scarcely lifted a finger to help owners find
lost pets or would-be owners adopt pets. Secondly, this argument totally ignores
the statutory obligation to be first and foremost a bailee for people's lost
pets. Fluffy or Spot may not look like good adoption candidates to some kennel
worker, but Fluffy and Spot may very well be family members whose families miss
them and love them regardless of their age, infirmities, or lack of objective
beauty. Moreover, these complaining shelters avoid comment on the embarrassing
fact that the overwhelming majority of states in this country provide far more
time for owners to claim their lost pets and for would-be owners to adopt.
(b)"Holding feral cats is cruel." Prior to Chapter 752, shelters were required
to hold all stray cats, regardless of temperament, for 72 hours. Chapter 752
recognizes that it is difficult to ascertain whether some cats are feral or
scared but tame. It also recognizes that some people care for feral cats,
despite the fact that they are not the stereotypic "pet" cat, and would be
willing to claim these cats and pay the required fees for release. Chapter 752
approximates the prior holding period for feral cats by stating that the holding
period for truly feral cats need be only 3 days (not including the day of
impoundment), instead of the 4 or 6 day holding period. Since many shy, scared,
or temperamental tame cats can appear to be feral, Chapter 752 provides 3 days
for a cat to calm down. At the end of that time, if a cat tests truly feral and
has not been claimed by his/her caretaker, he or she can be killed or released
to a nonprofit rescue/adoption group, if the group has requested him/her.
(c) "Chapter 752 fails to provide funding." There is much to say about this
criticism. First, this reaction is based on interpreting Chapter 752 as simply
requiring longer holding periods before animals are killed. It accepts the
"business as usual" practice of killing animals without attempts to locate their
human companions or to find responsible new homes. This is a costly business
practice. At enormous, documented expense to the public, many shelters blithely
kill and dispose of the bodies of animals whose human companions never had a
chance to reclaim them. Every time someone is reunited with his or her companion
and every time a companion animal is adopted, two financial effects occur: (1)
the costs of killing and carcass disposal are saved; (2) income from fees/fines
comes in. Our poorly run shelters have simply shelled out the money to kill and
dispose. Chapter 752 states that Californians do not want this senseless,
inhumane, expensive killing to continue. Chapter 752 creates a fiscally
responsible management strategy for those poorly run shelters that were unable
to figure this out for themselves. Still unable to figure it out, some shelters
are arguing that they should be paid to be cost-efficient.
Second, many of the shelters complaining about money have used this new law to
jumpstart the flow of money they had been unwilling or unable to secure
previously to meet legal obligations of humane treatment that pre-dated Chapter
752. Shelters, such as the County of Los Angeles County Department of Animal
Care and Control, have filed many claims for money from the State which suggest
lack of knowledge of their legal duties prior to Chapter 752 and insufficient
funds, in some cases, for at least the past 50 years. This backlogged need for
money is laid at the door of Chapter 752.
Third, this argument assumes that humane care follows infusions of money
specifically for humane care. It is analogous to the claims of agribusiness and
research entities which also claim that being kind to animals is too costly and
that they must be subsidized or protected from any financial losses attributed
to humane care. Chapter 752 was premised on laws that already required humane
treatment for animals. Many shelters have fully complied and have done so within
their budgetary limits. When budget limits did not provide what they wanted,
progressive shelters reached out to the nonprofit sector and to the community
for new ways of fulfilling their responsibilities of humane care. Arguing that
their situation is unique, many complaining shelters have not even looked at how
successful lower-kill shelters have managed to be humane within their budgets.
Nor have they sought a state bond measure or hammered out partnerships with
nonprofit groups. Setting up citizens’ fundraising groups is difficult when one
is seeking money to kill rather than to preserve life. It is no wonder that our
kill-oriented shelters have had difficulty. Only government run or heavily
subsidized entities, which are not sensitive to market pressure to perform in
accordance with consumer preferences, could exist for so long past the time the
market supports their method of doing business.
(d) "Vicious dogs are held longer under the new holding period which means that
docile dogs are being killed." There is an extensive body of California law that
deals exclusively with vicious dogs. Those statutes provide that an owner must
have 5 days notice before a dog can be killed. That period of time is longer
than Chapter 752’s 4-day holding period for shelters that provide working public
access hours. However, the vicious dog laws do not prohibit local jurisdictions
from making their own local ordinances to deal with the problem of vicious dogs.
(e) "Nonprofit 501(c)(3) animal rescue/adoption organizations cannot be
trusted." Two arguments have been made: (1) collectors will take animals from
the shelter; and (2) some nonprofits will divert animals into research. Both of
these concerns have some legitimacy. When it comes to animals, who cannot
protect themselves or describe their experiences in human terms, unaddressed
cruelty can occur in many different settings: individual homes, shelters,
rescue/adoption groups. At the same time that Chapter 752 allows rescue/adoption
groups to rescue animals from shelters, Chapter 752 heightens the ability of
shelters to rescue animals from "rescue/adoption" groups. Given the high kill
rate, the low adoption rate, and the lack of motivation in our shelters to work
with rescue/adoption groups, it was necessary to secure the right of such groups
to take animals from the shelters. However, Chapter 752 also increased the means
of dealing with "collecting." Moreover, nonprofit rescue/adoption groups are
required to pay fees up to the amount of fees paid by any other adopting person,
and they must submit the certification of their IRS Code 501 (c)(3) status as
"animal rescue/adoption" nonprofit organization. The fee structure can easily
make it uneconomical for collectors or for dealers to sell them to research
laboratories. In fact, a nonprofit group that fraudulently misrepresents itself
is far more vulnerable to criminal prosecution and legal sanctions than is a
shelter that funnels animals into research laboratories. Similarly, it is far
easier to address collecting, that results in the inhumane holding of animals,
than it is to address inhumane holding of animals in public shelters that
violate the anti-cruelty laws. While public shelters, private shelters with
humane officers, and police departments can all be deployed to address cruelty
in settings controlled by private individuals, there is precious little that can
be done to address cruelty in settings controlled by public entities. Chapter
752 enhanced the ability of public law enforcement entities to address
effectively the cruelty of private holders of animals, while it gave private
rescuers only the right to take individuals requested ahead of their kill dates
and for no more than the standard adoption fee. The scales are still heavily
weighted in favor of power residing in our shelters.
(f)"Chapter 752 is too confusing." There is no doubt that Chapter 752 is a
complex piece of legislation. For the protection of lost animals, this law seeks
to adjust the responsibilities of several different actors who take in found
animals: private citizens, public shelters, private shelters, and rescue groups.
Sadly, there are bad apples in each of these bushels. The shelters contend that
Chapter 752 targeted them when, actually, it spotlighted the plight of lost and
homeless animals and sought protections and cross-protections for them. Working
within existing legal structures, reinforcing duties everyone has to lost/found
animals, and providing protections for animals when people or shelters fail in
their duties are all complex tasks. But then, animal advocacy is seldom easy or
susceptible of positive change with one small squiggle of a legal pen. That is
why more talented and skilled people with legal training should enter this
field.
What Animal Activists Can Do With Regard to Chapter 752:
Animal activists will need to do the following to help insure the most effective
result from this law:
(a) Read and retain a copy of the law so that you can be a source of accurate
information for others, including your local shelter. Chapter 752 requires more
work than the other laws discussed above because it worked within a pre-existing
legal framework more than the others did. Terms such as "gratuitous depositary"
and "bailee" may be unfamiliar, but learning their meanings and their legal
consequences will provide a useful basis for understanding private and public
responsibilities toward found companion animals.
(b) Pay particular attention to how your shelter understands the holding period.
It is framed in terms of each animal being accessible to the public at least one
evening until 7 p.m. or one weekend day.
(c) Volunteer to comb the lost pet advertisements in local newspapers.
Previously prohibited rewards are now available to shelters if the lost
companion is impounded in the shelter. Similarly, increasing postings of
animals’ pictures on the web and proper maintenance of the lost/found bulletin
boards will increase reunifications and new adoptions.
(d) Help rescue groups develop collaborative relationships for the efficient
housing and adoption of companion animals.
(e) Assess ways in which veterinarians and reputable boarding kennels can take
over some types of sheltering, such as the sheltering of animals held while
alleged cruelty code violations are prosecuted.
(f) Educate yourself about your shelter’s policies and about humane alternatives
to their current practices. Read their policies and attend their public
meetings. Resist the idea that hurtful practices are as they are because they
have to be that way.
Part II. Why Was Legislation Necessary?
If spay/neuter, "owner-redemption," and promotion of responsible adoption are
humane and cost-efficient means of preventing and controlling cat and dog
overpopulation, why, asked several Legislators, have shelters not been doing
those things? Why are shelters engaging in "street cleaning" but not stopping
the financial hemorrhaging associated with constantly killing animals, many of
whose births could have been prevented with shelter-sponsored spay/neuter
programs? Killing, the strategy of choice for so long, has never been a
solution; there have always been more animals to fill shelters at taxpayer
expense and to kill at taxpayer expense. More spaying and neutering in the past
decade has brought impound rates down, but most entering animals die.
An immediate first response to this line of questioning is that some of our
shelter managers have, in fact, recognized the futility of prioritizing killing
and have taken steps in different directions. The partnership between the San
Francisco Department of Animal Care and Control and the San Francisco SPCA is a
striking example of the success of creative spay/neuter, "owner-redemption," and
adoption programs. In 1999 the combined efforts of these two sheltering entities
resulted in the successful placement or family reunification of 71.4% of the
cats and dogs who entered the system. Other success stories abound. San Diego’s
kill rate dropped significantly after intensive spay/neuter of feral cats, and
the Marin Humane Society has been progressive in many areas. Even the relatively
small Laguna Beach shelter, which is run as part of the Police Department,
operates on a no-kill basis for adoptable companion animals.
Lack of Initiative and Leadership
Unfortunately, shelters in California do not have a collaborative relationship
that enables the industry to move forward without outside prodding. Shelters do
not initiate legislation that moves the industry forward. Nor do national
sheltering organizations such as the Humane Society of the U.S. or the American
Humane Association consistently assist in taking the best models available and
encouraging their adoption. It is notable that in their article about "the
Hayden bill," HSUS recounts interviews only with complainers and not with
supporters such as the San Francisco SPCA which has the lowest city kill rate in
the entire country. In criticizing the "lengthy" new holding periods of "the
Hayden bill," HSUS neglects to note that California is, even after Chapter 752,
in a cluster of seven states at the bottom of the country in terms of length of
holding periods. In fact, Chapter 752 modestly increased the holding period
based on surveys of shelters, which revealed that most shelters were holding
animals longer because of dropping impound rates for the past 10 years.
Similarly, the American Humane Association’s glossy pamphlet on "SB1785"
emphasizes what it sees as problems and claims that the law may achieve its
goals but at the cost of throwing "overstressed" shelters into chaos. The
President of the SPCA/LA joins in criticizing "the Hayden bill" as confusing,
but, in fact, the new legal provision requiring shelters to deal with nonprofits
such as hers gives legal security to the SPCA/LA’s recent decision to comb the
municipal shelters for placeable animals and adopt them through their adoption
centers.
What is the "chaos" complained of and why are apparently leading sheltering
organizations condemning a bill in one-sided attacks? Bureaucratic and actual
day-to-day chaos in our poorly run shelters is the result of many problems that
pre-existed Chapter 752. However, Chapter 752 has added to the ideological chaos
surrounding the acceptability of no-kill ideology and practice. On the one hand,
we have shelters continuing to kill at prodigious rates without making inroads
into the problem of cat and dog overpopulation. On the other, we have shelters
like the San Francisco Department of Animal Care and Control and its partner,
the San Francisco SPCA, that have brought the rates of killing and homelessness
down to nationally impressive lows. Yet, there is still tremendous debate about
what approaches are appropriate and what "works." It is interesting that no
commentator has remarked on the striking similarity between the policy language
of Chapter 752 and the policy language of the adoption pact between the San
Francisco Department of Animal Care and Control and the San Francisco SPCA.
Senator Hayden did not simply run a novel idea up the legislative flag pole to
see how it would fly; he looked to the most life-saving, cost effective
sheltering program around and adopted those aspects that could be transferred to
the general industry.
The No-Kill Debate
Perhaps precisely because he used such a successful model, Senator Hayden
stepped into a raging controversy about whether "no-kill" is an appropriate
goal. It must be an embarrassing loss of face to "humane" societies who continue
on their path of killing despite the demonstrated success of a program that
prioritizes life over death. But embarrassment does not explain the vehemence of
the reaction. An important belief system is at stake. Even though killing is
inherently violent and violative of the innate urge to live, for the human
killer it is a comfortable response to the question of a humane solution to lost
and homeless companion animals. After all, one need never wonder about whether
the animal is being mistreated in a new home; he is dead.
I have often wondered how this approach could be seen as anything other than
extreme. The statistics on future prospects for impoverished children in America
are alarming and profoundly sad, yet no one urges the wholesale killing of these
children because most of their lives will be difficult and painful. On the
contrary, such statistics motivate efforts to deal with the underlying problems.
Why is it acceptable to opt for death instead of solutions in the case of
companion animals? Is it simply a matter of traditional practices? Do people
really believe that death is fundamentally better than the uncertainty and
inevitable struggles of life--a belief they can act on with animals but cannot
act on as to humans? Are these "just" examples of the ideological definition of
animals as fungible contrasted with the ideological definition of people as
unique individuals? I don’t know. But I do know that a non-violent,
life-preserving approach is ultimately more comfortable and productive of the
search for solutions than the discomfort of wedging the violent (even if
painless) act of killing into a rationalization that enables one to continue
routine extermination of cats and dogs. Indeed, the ease of killing obviates the
search for solutions.
Perhaps Sara Wiswall has captured our present state when she applauds Chapter
752’s "aggressive step toward the overall problem of animal overpopulation. .
.by placing responsibility on the finders and holders of animals and by
promoting adoption rather than extermination" but also notes that society may
not yet be ready or willing to come to terms with the ethical issues involved
with animal euthanasia. In fact, many shelters are throw-backs to the days of
killing as the only method of population control and punishing animals for the
apparent irresponsibility of their human companions. Those of us working on
these bills as they moved through the Legislature searched for answers to the
question as to why there is such disparity in animal sheltering and resistance
to change even in the face of demonstrated progress at shelters trying new
techniques.
Why Doesn’t The Killing Stop?
Many explanations surfaced. Most had to do with management incentives to try new
approaches. One view, from a person within the sheltering industry, is that many
shelter directors have moved up through the ranks from kennel worker to
management, carrying with them the belief that killing is appropriate,
cost-effective, and supported by the public. When a person who cares about
animals takes a job that requires them to kill healthy animals, there is strong
internal pressure to justify what she or he is doing without sacrificing the
belief that he or she cares about animals. Killing is legitimized as kinder than
an uncertain fate. It is deemed "necessary" because of owners' irresponsibility.
A shelter culture emerges that reinforces the "need" to kill because of others'
irresponsibility, the greater good of painless death as compared to life in a
problematic, or cruel, home, the value of providing the service of disposing of
animals no one wants to see on the streets, and solidarity among those who kill
without receiving thanks from the people who appear to benefit from their
"street cleaning." Certainly it would be easier to believe in the justice and
wisdom of killing than to continue to kill while burdened with a nagging
suspicion that animals could have and deserve a chance at life, whatever life
brings to them. There is just too much cognitive dissonance involved in caring
about animals while routinely killing healthy, loving and lovable individuals. A
person whose career is maturing in such a setting may well develop belief
systems to support the methods she or he has used for so long.
Second, there would be few occasions to question whether this approach is
supported by the public because the general public does not use shelters on a
regular basis. If a person rarely visits the shelter, he or she may see nothing
amiss or may well believe that a bad experience is atypical. Not finding a lost
companion may mean that the animal never came in to the shelter and not
necessarily that it was killed immediately or sitting in some shelter in another
part of the city. Moreover, if there is proof that the shelter has violated the
law even to the extent of killing someone's companion animal, that person is
entitled to very limited monetary damages. It is not cost effective for lawyers
to handle those cases, and, even if the shelter pays damages, the amount of
money is so small that it fails to serve as a deterrent sufficient to generate
change in the shelter. Lawsuits against the government, even suits in which the
court simply directs the shelter to follow the law, are notoriously
time-consuming, expensive, and difficult to win. Animals can’t talk, volunteers
won’t talk, and shelters control all records. Only volunteers and rescuers who
want to find homes for shelter animals have regular dealings with shelters. Yet
volunteers’ and rescuers’ ability to provide relief to "sheltered" animals is
dependent on maintaining a good relationship with shelter personnel.
Third, with so few avenues for correction, shelters could veer farther and
farther away from compliance with laws and social norms until finally they could
believe that their acts conform to the law and with what the public deserves or
wants. How did it happen that carbon monoxide chambers were operated so
inhumanely that very specific legislation as to their use was necessary? How
could so many shelters know nothing about case law requiring them to hold pre-
or post-seizure hearings when confiscating companion animals? Some of that case
law is 47 years old! As a matter of doing the job for which they are paid, how
could shelters not know that killing feral cats violates a legal requirement
that all stray cats be held for the legally required holding period? In
retrospect, perhaps it would have been more shocking if they had known and
followed the law in the absence of any pressure to learn about the law or comply
with it. If no one knows of the infractions or keeps quiet because of the costs
involved or the lack of meaningful redress, what would keep a shelter up to date
with laws or social attitudes other than an assertive progressive shelter
management team? Do we have assertive, progressive shelter managers? Yes, but
precious few.
Far from assertive about defining their mission, a substantial number of
shelters are still unwilling or unable to implement the new laws described in
this article. According to a Fund for Animals survey conducted in December of
1999, 4 of the 10 shelters still using carbon monoxide chambers were unprepared
to switch to sodium pentobarbital despite having had since late September of
1998 to prepare. Similarly, many shelters are unprepared to comply with
pre-release sterilization requirements, although their taking effect on January
1, 2000, has been known since late September of 1998. Finally, continuing
complaints about Chapter 752 causing the killing of adoptable animals to house
unadoptable animals are as legion and ironic as are the accounts of shelters’
still choosing to kill animals rather than to allow qualified rescue groups to
take them for placement. In some places there has been more hand-wringing,
protestation, and talk of repeals than there has been hard work to implement
these laws. That Chapter 747 will expire on January 1, 2006, is largely due to
the pressure of shelters at the time of its consideration in the Legislature,
and Chapter 752 is vulnerable to many different attacks from shelters that
resist adding spay/neuter or adoption programs.
What The Future Can Bring
Unlike some who propose some kind of statewide agency oversight of shelters, I
believe that the solution to inadequate sheltering lies in the collaborative
efforts of people within communities where there are specific needs and
service-providers. If an atmosphere supportive of change can be developed,
partnerships between public shelters and nonprofit shelters supported by
donations can "push" public shelters and local government contractors in the
direction of the mission funded by donations to the nonprofit. A nonprofit
humane organization can, through its ability to raise funds to support its
mission, provide the local government contractor with alternatives the
government can't or won't pay for. If financially strong enough and positioned
as a viable "player" in the vicinity, the nonprofit can actually demand
acceptance of its policies as a condition of contract work. Such a strategy is
also available to public entities that do their own work, if they coordinate
with fundraising arms that can raise money for more humane programs than the
public entity can secure through budget requests. A "friends of the shelter"
program can work, however, only if the public entity is prepared to implement
changes in accordance with accepting donations conditioned on changes in humane
objectives and practices.
On the other hand, if the nonprofit contractor to provide animal services is
dependent on government contract money, it is more likely that the "push" to
change will work in the direction of government money deciding how the
nonprofit's mission will be accomplished. Heavier reliance on standard
techniques, such as killing and disposal, rather than new approaches, such as
spay/neuter, public education, and adoption, is unremarkable when government
money is of more importance to the nonprofit's financial security than is
donors' money to support its mission. In such a financial environment, nonprofit
animal service providers need to be particularly forceful in educating the
government-customer as to the proven long term benefits of new approaches as
demonstrated by shelters that have successfully brought the kill rate down.
Not wanting to accept Wiswall's suggestion that we may not be ready to come to
terms with the ethical costs of "euthanasia," I conclude that large enough
sectors of the community dealing with lost cats and dogs have, in fact, rejected
killing as an immediate response and are hard at work on strategies to reduce
homelessness and overpopulation. The view that there has to be a better way is
shared by many, including Jill Gilchrist, who heads an SPCA in Kenya. After
attending an HSUS Animal Care Expo in February of 1998, she reported that "all
morning people taught us how to do euthanasia. . . Then in the afternoon they
taught us how to get counseling and cope with the grief because you feel so bad
about killing animals. . .That is not going to be us."
It does not have to be us, either. Rescue and adoption groups need to take
responsibility for informing themselves of innovative practices through
communicating with progressive shelter organizations and by reading
paradigm-shifting articles and books such as Brestrup’s Disposable Animals.
Coordination of efforts to address overpopulation through prevention and
responsible rescue can result in substantial change. As knowledgeable
participants in creating an atmosphere conducive to change, these groups can
forge alliances among themselves and partnerships with shelters. All of us must
be prepared to challenge the position that the status quo is all that can be and
that silence in the face of injustice or simple wrongheadedness will protect the
most animals. Above all, we must honor the impulse to reject killing as a
solution.
About The Author
Professor Bryant teaches courses about animal law and nonprofit organizations at
UCLA Law School, where she has taught for the past 12 years. Trained as an
anthropologist as well as a lawyer, Dr. Bryant assisted Senator Hayden in the
drafting of Chapter 752. In collaboration with other lawyers and veterinarians,
she conducted survey and legal research that served as a foundation for various
provisions of Chapter 752.
Read more:
The No-Kill Movement Moves Forward;
Kern Animal Shelter made to vacate; no-kill. rescue or hoarding?, opposing
views; PETA
Ways to help prevent and/or end the pet homelessness crisis
Visit our
Animal Law &
Animal Welfare/Advocacy pages for more
I hope to make people realize how totally helpless animals are, how dependent on
us, trusting as a child must that we will be kind and take care of their
needs…they are an obligation put on us, a responsibility we have no right to
neglect, nor to violate by cruelty. James Herriot 1916-1995
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