by Dawn D. Danielson, RVT, former director, County of San Diego Animal Services
The subject of intake, holding and release of cats into the community from which they were brought to a shelter is becoming an emotionally charged debate over, among other things, the lawfulness of programs operating under such names as “community cats,” “return to field,” and “managed intake.”
This is an examination of the statutory laws that apply to domestic cats and the duties on animal control agencies, including humane societies that contract with municipalities for animal control services.
Duty to Take In Cats
Accepting stray cats is usually not a discretionary duty of a public animal shelter or humane society contracted to a municipality for animal control services. Such agencies in most states cannot turn away cats or other animals brought in from areas served by the agency.
Thus, when a member of the public brings a cat that is not owned by that person to the agency contracted to provide animal control services, that agency is, in most states, obligated to receive the cat.
Once the cat has been taken in, the agency has several duties, typically those outlined in California Civil Code Section 1834 and Penal Code Section 597.1.
“And treat them kindly”
California Civil Code Section 1834 states, “A depositary of living animals shall provide the animals with necessary and prompt veterinary care, nutrition, and shelter, and treat them kindly. Any depositary that fails to perform these duties may be liable for civil damages as provided by law.”
California Penal Code Section 597.1 adds in pertinent part that, “Every keeper of any animal who permits the animal to be in any building, enclosure, lane, street, square, or lot … without proper care and attention is guilty of a misdemeanor. Any peace officer, humane society officer, or animal control officer shall take possession of the stray or abandoned animal and shall provide care and treatment for the animal until the animal is deemed to be in suitable condition to be returned to the owner.”
Both of the above sections apply equally to cats who are apparently healthy as well as those who are ill or injured.
Additionally, any cat who is ill or injured must be impounded by the agency, and this too is true in almost every U.S. state, as well as in most Canadian provinces and many other foreign jurisdictions.
Duty to hold cats in light of Hayden
In California, the 1989 “Hayden Law” (SB 1785) amended the state law as it then existed, to expand and reinforce the principle that animal sheltering agencies have a mandatory duty to accept animals and provide appropriate care to them.
Among the tenets of the “Hayden Law” are the belief that stray pets should be reunited with their families whenever possible, and that in all cases pets should be treated as humanely as possible.
The language added to California code, now echoed in the laws of many other states, holds that “public and private animal shelters should be held to the same legal duties as those that exist for private citizens,” including “necessary and prompt veterinary care, adequate nutrition and water, and shelter,” and the obligation to treat every animal “humanely.”
Further, “if the animal has any identification,” the agency must “make reasonable attempts to notify the owner of the animal’s location.”
Better shelters take in animals than private citizens
Under the “Hayden Law,” the California legislature “finds and declares that it is better to have public and private shelters pick up or take in animals than private citizens. The Legislature further finds that the taking in of animals is important for public health and safety, to aid in the return of the animal to its owner, and to prevent inhumane conditions for lost or free roaming animals.”
The “Hayden Law” also recognized the difference between stray domestic cats and truly feral cats, authorizing the euthanasia of feral cats as being more humane than continued confinement.
Per the “Hayden Law,” any cat who is suspected of being feral should be observed for 72 hours so as to distinguish between a scared domestic cat and a truly ‘wild’ animal.
Explains the language of the law itself, “Domestic cats’ temperaments range from completely docile indoor pets to completely unsocialized outdoor cats that avoid all contact with humans. ‘Feral cats’ are cats with temperaments that are completely unsocialized, although frightened or injured tame pet cats may appear to be feral… It is cruel to keep feral cats caged for long periods of time; however, it is not always easy to distinguish a feral cat from a frightened tame cat. For the purposes of this section, a “feral cat” is defined as a cat without owner identification of any kind whose usual and consistent temperament is extreme fear and resistance to contact with people. A feral cat is totally unsocialized to people.”
The “Hayden Law” was among the first state laws to introduce a provision allowing for the practice of trap-neuter-return, as it is now almost universally practiced throughout the U.S. and Canada:
“Notwithstanding Section 31752, if an apparently feral cat has not been reclaimed by its owner or caretaker within the first three days of the required holding period, shelter personnel qualified to verify the temperament of the animal shall verify whether it is feral or tame by using a standardized protocol.
“If the cat is determined to be docile or a frightened or difficult tame cat, the cat shall be held for the entire required holding period specified in Section 31752.
“If the cat is determined to be truly feral, the cat may be euthanized or relinquished to a nonprofit, as defined in Section 501 (c)(3) of the Internal Revenue Code, animal adoption organization that agrees to the spaying or neutering of the cat if it has not already been spayed or neutered.”
Duration of the duty of humane treatment and care
Of significant note is that the “Hayden Law” neither mentions a duration for the mandatory duties of any animal care and control agency, nor a point at which they expire.
Arguably, the language of California law requiring that animals be treated “kindly” and “humanely” imposes a duty to take into consideration the consequences of placement decisions.
While it may initially seem to be a stretch to impose the duties of care and humane treatment beyond the period in which an agency retains physical custody of a cat, this is the only logical interpretation of these duties as stated.
These duties apply equally to all animals impounded by animal control agencies and humane societies, not just cats. If the duty to provide humane treatment did not extend beyond the period of physical custody, there would be no restriction on the manner of release/placement of the animal.
Every animal could simply be turned loose at the conclusion of the 72 hour holding period, or even be given to some torturous or inhumane circumstance or criminal enterprise, including slaughter by any inhumane method.
Dogs are individuals, but cats are not?
Nobody has ever seriously contemplated simply opening the kennels and letting dogs, birds, reptiles and other pets wander away. Why then do we expect that this is a proper outcome for cats?
The animal welfare industry is quick to “correct” any person who groups even a single breed or group of breeds together as using an unacceptable and flawed stereotype, no matter how intensively and how long a dog has been selectively bred for specific behavioral traits,
Bully breeds are the most common example of the push to see each dog as an individual.
Yet, those same institutions and individuals who fight for the individuality of dogs often stereotype all cats together.
Even truly feral cats vary
Even truly feral cats vary in their ability to adequately provide the essentials of life for themselves. Some are avid “mousers,” while others are not. If all feral cats could adequately provide for all of their needs for food, water and shelter, we would have no need for caretakers to feed them. In fact, the presence of caretakers would be a counterproductive intrusion and source of stress on them.
If not all feral cats can be expected to thrive without human assistance, then what about other, more social pet cats?
It is inarguable that pets, by virtue of their social nature, are more dependent upon humans to provide the necessities of life than are wild animals. The tamer an animal is, the more the animal depends upon the benefaction of humans.
It is also inarguable that few jurisdictions require the confinement of cats to the owner’s private property; and where such ordinances exist, they have proved extremely difficult to enforced. This is in direct opposition to the requirements and expectations for dogs.
Cats are due no less care under the law than dogs
Thus, the fact that a cat is not confined to private property or restrained by a tether is not an indication that the cat is unowned. But cats are due no less care under the law than dogs.
California Penal Code Section 599b, for instance, states that “the word ‘animal’ includes every dumb creature; the words ‘torment,’ ‘torture,’ and ‘cruelty’ include every act, omission, or neglect whereby unnecessary or unjustifiable physical pain or suffering is caused or permitted.”
What is the basis for the assertion that a cat being found outdoors on one or even multiple occasions automatically means that the cat is thriving? That sighting or trapping is but “a snapshot in time” and does not provide any insight as to its background.
The cat may be an indoor cat who was inadvertently locked out or is otherwise unable to return home, yet possesses absolutely no skills in finding food/water/shelter and avoiding hazards such as predators, traffic, or people who would do the cat harm.
Is this not an example of the impermissible stereotyping of all cats as being completely independent?
How to identify the life skills of each cat?
The very existence of feral colony caretakers dispels that stereotype. And since that stereotype is invalid and flawed, do we not have a duty to evaluate each cat as an individual and assess the cat’s ability to thrive before determining the environment in which it will be placed?
Is that not part of providing humane care for the animal?
How, then, do we accomplish that in 72 hours?
What temperament assessment can be used to adequately and conclusively identify the life skills possessed by each cat?
Even if we could do that, how can we accurately and completely identify all of the hazards in each of the various communities from which each cat was found.
As difficult as each of those two tasks is, the odds of failure increase exponentially when those two assessments are combined into the real-world scenario of returning a particular cat to a particular environment.
“Abandonment is a criminal act”
If we release an animal into an environment in which it is likely not to have all of its basic needs met, then we have failed to perform our duty of providing humane treatment of that animal—we have abandoned that animal to whatever harm will befall it.
In California, and most other states, such abandonment is a criminal act.
While the case law on this issue is sparse, most prosecutors would agree that leaving an animal under circumstances that pose a significant risk that the animal will suffer is criminal neglect. This is why most law enforcement agencies would not prosecute an owner who leaves an animal, with the intent never to return, at such places as a veterinary office or animal shelter.
But, leaving the same animal in a place where the animal will be exposed to predators, a lack of food/water/shelter, or other form of suffering would likely result in a criminal filing.
No exemption for animal shelters
There is no exemption to these principles for animal control agencies or humane societies. The moral implications of abandoning animals into environments for which they are not equipped to survive are the reasons why some wildlife, habituated to human care, cannot be returned to the wild.
We recognize that to return certain wild animals with some level of handicap to their natural habitat would impose suffering and premature death on them.
But domestic cats and other pets may be even more dependent upon assistance from humans than animals who are rarely if ever found living voluntarily in domestic situations.
The legislation of every U.S. state and every Canadian province, as well as many foreign jurisdictions, requires that Penal Code section 597.1 requires that domesticated animals be given adequate shelter.
The term ‘adequate shelter’ has different meanings for different species.
But what is adequate shelter for a domestic non-feral cat?
What shelter is being provided for domestic non-feral cats released into a community with no real ‘owner’ and no home in which to live?
If a specific owner claims that his/her individual cat is ‘outdoors only,’ would animal control officers and humane officers insist that the owner have some identified shelter available to the cat, whether or not the cat chooses to use it?
This is indisputably the standard for dogs. Are domestic, socialized (and sometimes declawed), cats physiologically endowed with greater ability to withstand the cold, rain, wind, heat and direct sun of being outdoors than dogs?
Some argue that so long as the cat has a ‘caretaker,’ it is okay to release the cat out onto the streets.
We don’t allow dogs to run at large because when they do, we lack the ability to properly supervise and care for them. What power does a ‘caretaker’ have to protect a cat who has been released to roam an entire neighborhood?
The caretakers of feral cats—those cats that are truly wild and arguably among those that are best able to provide for themselves—provide only feeding stations and, occasionally, after an illness or injury is identified—and only if the caretaker is lucky enough to be able to entice the cat into a trap again —is there any possibility of providing veterinary care.
A “caretaker” is someone who realistically has only the power to leave food out that may attract not only the cat(s) being ‘cared’ for, but also other animals including competitors, predators and disease-causing vermin.
(Responsible caretakers feed only at specific times each day, supervise the feedings to monitor the individual cats’ health, and do not leave any food or feeding paraphernalia behind after the feeding time. But there are no caretakers of caretakers to ensure that they all observe these rules.)
Why would a caretaker not be culpable?
An argument can be made that the risk of the many hazards feral cats face is preferential to euthanasia for feral cats because a percentage of them have adequate skills to possess a fighting chance at a reasonably successful, albeit shortened life.
But pet cats are far more likely to lack the skills possessed by feral cats, who would have perished previously but for their survival skills.
Any such argument applied to pet cats lacks credibility.
Animal control agencies and humane societies routinely seek to prosecute the owner of a pet cat who allows his/her cat to roam outdoors when that cat becomes injured or ill and the condition goes untreated. The excuse of inability to locate and capture the cat in order to seek timely treatment is not viewed as a valid defense against criminal liability for such charges.
Why would a caretaker of a cat who was released by an animal control agency or humane society be any less culpable?
If a caretaker has no responsibility, who does?
California law, like the laws of most states, does not require that the person charged with abandonment or neglect be the “owner” of the animal. The laws of most states only require that the person be responsible for the animal.
If the caretaker has no responsibility for the cat that is released, then who does? If nobody does, then how has the cat not been abandoned?
Animal care and control agencies are constantly looking for innovative ideas to deal with the number of cat intakes and the numbers of cats who go unclaimed and are euthanized.
Likewise, city and county governments are constantly looking for ways to avoid the cost of housing cats taken in from the community.
These goals do not, however, relieve either the municipalities or the agencies of their mutual obligation to adequately provide for the welfare of cats in the community, including the obligation to comply with applicable state laws.
Moving cats from one “not home” to another
The mere presence of a caretaker who has no real ability to provide more than periodic feedings, which may or may not attract cats who have been indiscriminately released, fails to meet those legal standards.
Thus return-to-field programs, releasing cats who show few if any signs of feral self-sufficiency, and are apparently dependent upon human feeding and protection, seem to be the height of hypocrisy.
With these programs we seek to avoid euthanasia of relatively tame cats, but at risk of knowingly and deliberately exposing them to needless suffering and pain, and in many cases a horrific death.
Rather, return-to-field is the process of removing a cat from one place where the cat is not “home” to a shelter where the cat is also not “home,” and then returning the cat to the first “not home” location.