BILL ANALYSIS Ó SB 716 Page 1 Date of Hearing: June 30, 2015 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair SB 716 (Lara) - As Amended May 5, 2015 SUMMARY: States that it is misdemeanor for any person who houses, possesses, or is in direct contact with an elephant to use specified devices designed to inflict pain for the purpose of training or controlling the behavior of an elephant. Specifically, this bill: 1)Specifies that on or after January 1, 2018, it shall be a misdemeanor for any person who houses, possesses, or is in direct contact with an elephant to use a bullhook, ankus, SB 716 Page 2 baseball bat, axe handle, pitchfork, or similar device designed to inflict pain for the purpose of training or controlling the behavior of an elephant. 2)Prohibited behavior includes brandishing, exhibiting, or displaying any of the devices, listed above, in the presence of an elephant. EXISTING LAW: 1)Specifies that it is a misdemeanor for any owner or manager of an elephant to engage in abusive behavior toward the elephant, including the discipline of the elephant by any of the following methods: a) Deprivation of food, water, or rest. (Pen. Code, § 596.5, subd. (a).) b) Use of electricity. (Pen. Code, § 596.5, subd. (b).) c) Physical punishment resulting in damage, scarring, or breakage of skin. (Pen. Code, § 596.5, subd. (c).) d) Insertion of any instrument into any bodily orifice. (Pen. Code, § 596.5, subd. (d).) e) Use of martingales. (Pen. Code, § 596.5, subd. (e).) SB 716 Page 3 f) Use of block and tackle. (Pen. Code, § 596.5, subd. (f).) 2)Specifies the actions of a person who maliciously and intentionally maims, mutilates, tortures, or wounds a living animal, or maliciously and intentionally kills an animal as a criminal offense. (Pen. Code, § 597.) 3)Specifies when a person overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, drink, or shelter, cruelly beats, mutilates, or cruelly kills any animal, or causes or procures any animal to be so overdriven, overloaded, driven when overloaded, overworked, tortured, tormented, deprived of necessary sustenance, drink, shelter, or to be cruelly beaten, mutilated, or cruelly killed; and whoever, having the charge or custody of any animal, either as owner or otherwise, subjects any animal to needless suffering, or inflicts unnecessary cruelty upon the animal, or in any manner abuses any animal, or fails to provide the animal with proper food, drink, or shelter or protection from the weather, or who drives, rides, or otherwise uses the animal when unfit for labor as a criminal offense. (Pen. Code, § 597, subd. (b).) 4)Requires punishment as a felony by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment, or alternatively, as a misdemeanor by imprisonment in a county jail for not more than one year, or by a fine of not more than twenty thousand dollars ($20,000), or by both that fine and imprisonment for violations of Penal Code section 597(animal cruelty). (Pen. Code, § 597, subd. SB 716 Page 4 (d).) 5)Requires that if a defendant is granted probation for a conviction animal cruelty, the court shall order the defendant to pay for, and successfully complete, counseling, as determined by the court, designed to evaluate and treat behavior or conduct disorders. If the court finds that the defendant is financially unable to pay for that counseling, the court may develop a sliding fee schedule based upon the defendant's ability to pay. The counseling shall be in addition to any other terms and conditions of probation, including any term of imprisonment and any fine. If the court does not order custody as a condition of probation for a conviction under this section, the court shall specify on the court record the reason or reasons for not ordering custody. This does not apply to cases involving police dogs or horses as described in Section 600. (Pen. Code, § 597, subd. (h).) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: According to the author, "SB 716 simply codifies industry standards for elephant management by prohibiting the use of bullhooks, bats, and pitchforks to discipline an elephant. A bullhook is typically embedded into most sensitive areas of an elephant, which involves areas around the ears, mouth, and back of the legs. The use of this instrument also puts handlers at severe risk, should an elephant decide to rebel against the trainer. Since 1990, there have been at least 16 human deaths, and 135 injuries in the U.S. have been attributed to elephants, primarily in circus-related incidents. Simply put, it is time for the State SB 716 Page 5 to prohibit this inhumane practice." 2)Federal Protection Afforded to Elephants under the Animal Welfare Act: Under the Animal Welfare Act (AWA), zoos, circuses, transporters, roadside menageries and exhibitors of elephants must be licensed and participate in record-keeping and marking requirements. Additional protections exist governing their care, handling, and transport. The AWA gives power to the Secretary of Agriculture and the United States Department of Agriculture, whose power is further delegated to the Animal Plant and Health Inspection Service (APHIS) to administer and enforce the AWA's requirements. APHIS enforces the Act through conducting inspections and instituting rules and regulations for facilities. APHIS is required to conduct yearly inspections and investigate facilities whenever a complaint is filed. The AWA does not prohibit any particular instruments in the handling of elephants or other warm blooded animals. 3)Guide, Bullhook, and Ankus are Terms which Refer to the Same Tool: The guide is a shaft with a tapered metal hook attached, and it sometimes has a blunt metal point at the end. It is also sometime referred to as the ankus, (bull)hook, or goad. The guide extends a handler's reach so s/he may touch, push, or pull various parts of the elephant's body. A guide is used in all free contact programs in the United States, and may also be used in conjunction with protected contact. Literature Review on the Welfare Implications of Elephant Training, (April 2008) www.avma.org/KB/Resources/LiteratureReviews/Documents/elephant_ training_bgnd.pdf 4)American Veterinary Medicine Association (AVMA) Policy Does Not Prohibit the Use of Guides/Bullhooks: AVMA policy prohibits the use of guides in a manner which inflicts harm on an elephant, but allows use of the guide as a husbandry tool for elephant management. SB 716 Page 6 "The AVMA condemns the use of guides to puncture, lacerate, strike or inflict harm upon an elephant. Elephant guides are husbandry tools that consist of a shaft capped by one straight and one curved end. The ends are blunt and tapered, and are used to touch parts of the elephant's body as a cue to elicit specific actions or behaviors, with the handler exerting very little pressure. The ends should contact, but should not tear or penetrate the skin." (Elephant Guides and Tethers, AVMA.) www.avma.org/KB/Policies/Pages/Elephant-Guides-and-Tethers.aspx "The AVMA recommend tethers only be used for the shortest time required for specific management purposes. Tethers provide a means to temporarily limit an elephant's movement for elephant or human safety and well-being. Tethers can be constructed of rope, chain, or nylon webbing, and their use and fit should not result in discomfort or skin injury. Forelimb tethers should be loose on the foot below the carpal joint, and hind limb tethers should fit snugly on the limb between the tarsus and knee joints. Tether length should be sufficient to allow the elephant to easily lie down and rise unless required for medical procedures for a limited period.. The AVMA also recognizes that shorter or otherwise modified tethers may need to be applied for limited period of time to perform medical procedures safely. "Guides and tethers are used for training elephants in some elephant management systems, and appropriate training is important for facilitating veterinary care. However, guides and tethers should only be used in a manner consistent with the promotion of optimum welfare of the elephant. Personnel using these devices should be trained adequately, as well as introduced to alternative management systems." (Elephant Guides and Tethers, AVMA.) www.avma.org/KB/Policies/Pages/Elephant-Guides-and-Tethers.aspx 5)Under Existing Law, it is a Crime to Engage in Abusive Behavior Towards an Elephant: "It shall be a misdemeanor for SB 716 Page 7 any owner or manager of an elephant to engage in abusive behavior toward the elephant, . . ." (Pen. Code, § 596.5, subd. (a).) The statute goes on to list specific conduct which is included under "abusive behavior," but does not limit the definition of abusive behavior towards and elephant in any way. A "bull hook" or "guide" used by an owner or manager to engage in abusive behavior toward the elephant is already a crime under existing law. 6)Criminalizing the Use of the "Bullhook" or "Guide" Will Eliminate Elephants in Live Performances: There are two models for elephant trainers and caretakers to interact with elephants: "protective contact" and "free contact." In the protective contact model, the trainer or caretaker only interacts with elephants through a barrier or fence. In free contact the trainer/caretaker shares a physical space with the elephant. The bullhook/guide is necessary for free contact training or management. Without use of the "bull hook" or "guide," free contact is not a viable model for interacting with elephants. In order to have a live performance involving an elephant, free contact is necessary. Live performance with elephants typically occurs in a circus, but can also include use of elephants in films, or events like county fairs. If the use of the bullhook is prohibited, participation of elephants in those events will not be possible. 7)Argument in Support: According to The Humane Society, "The bullhook is the most commonly used device to train, punish, and control elephants. A bullhook is approximately 2 to 3 feet long and resembles a fireplace poker. It has a sharp metal hook and spike at one end and the handle is typically plastic or wood. Bullhooks are used to poke, prod, strike, and hit elephants on their sensitive skin in order to "train" them. Often the elephants are hit behind the ears and eyes which are paper thin and around their feet, mouth and trunk which are rich in nerve endings. "Elephants are often hooked and hit with bullhooks before performances in order to instill fear and, in turn, ensure SB 716 Page 8 that tricks or other desired behavior will be performed on command, during training to teach and reinforce tricks, to punish the animals when they fail to perform as instructed, and to control elephants during routine handling. The handle is used as a club, inflicting substantial pain by striking areas where little tissue separates skin and bone. In response to criticisms that bullhook use constitutes abuse, the industry has publicly started calling it a "guide." Just brandishing the bullhook provides a constant reminder to elephants of the painful punishment that can be meted out against them at the whim of their handlers. "California zoos accredited by the Association of Zoos and Aquariums (AZA) no longer use bullhooks, nor does the Performing Animal Welfare Society's sanctuary which is home to numerous rescued elephants. The AZA now also urges all its member zoos to switch to a safer and more humane elephant training system that does not utilize the bullhook. "In addition to the inhumane treatment of elephants, traveling shows and other performances that use elephants in the state also pose a threat to public safety by bringing people into dangerously close proximity to an incredibly powerful and stressed wild animal. The use of bullhooks promotes aggression and the device will not prevent an elephant from rampaging or protect the public when such an incident occurs. There have been numerous incidents where elephants have run amok, sometimes causing death, injury, or property damage." 8)Argument in Opposition: According to The Elephant Managers Association, "With respect to the proposed bill SB 716, we would like the Committee members to be aware of some facts regarding captive elephant management: "There are current, and widely accepted, professional industry standards such as the EMA Guidelines for Elephant Care and Management and the EMA supported Elephant Husbandry Manual, as well as the Association of Zoos and Aquariums' (AZA) Elephant Standards and Guidelines. SB 716 Page 9 Additionally the American Veterinary Medical Association (AVMA) has gone on record supporting the use of professional tools, including the guide, to manage elephants; "There are existing federal regulations that strictly govern elephant care under the Animal Welfare Act and that are overseen and revised frequently by the U.S. Department of Agriculture, animal and Plant Health Inspection Service (USDA/APHIS). USDA/APHIS utilizes trained veterinary professionals who are instructed specifically in animal/elephant care and welfare to conduct regular inspections of all license exhibitors of elephants (and other animals); "All animal species are able to be trained using "operant conditioning." This is a type of learning in which the probability of a behavior recurring is increased or decreased by the consequences that follow. This teaching process includes both positive and negative reinforcement. Operant conditioning is used in all forms of elephant care, and the process of training animals responsibly utilizes a variety of science-based techniques which are critical to providing proper welfare and husbandry. Utilizing and elephant guide and employing positive reinforcement are often part of the same overall operant conditioning system. "All animal species are vastly different in their husbandry needs and each species requires specialized equipment to ensure proper care. Tools such as elephant guide (or bullhooks) are safe and productive components of elephant care and training. As will all specialized equipment, their effective sue requires skill and training while their complete elimination inhibits effective and proper management techniques that are specific to elephants due to their size and unique evolutionary adaptations. Elephant tools are not intended to injure or harm the animal and are proven and humane husbandry tools that are widely utilized by knowledgeable and experience elephant care professionals SB 716 Page 10 in a variety of settings. They also add an increased degree of safety for the trainer, the animal, and the public." 9)Prior Legislation: a) AB 777 (Levine), of the 2007-2008 Legislative Session, would have prohibited specified conduct in relation to housing, possessing, contacting, or traveling with an elephant. AB 777 was held in the Assembly Public Safety Committee b) AB 3027 (Levine), of the 2005-2006 Legislative Session, would have prevented the use an Ankus, bullhook, or similar device on an elephant. Would have prevented the use of any chain that is used to restrain an elephant, except if utilized for the shortest amount of time necessary to provide actual medical treatment. AB 3027 was held in the Assembly Appropriations Committee. REGISTERED SUPPORT / OPPOSITION: Support Active Environments, Inc. SB 716 Page 11 Amboseli Trust for Elephants American Society for the Prevention of Cruelty to Animals Animal Legal Defense Fund (San Francisco Bay Area) Best Friends Animal Society City of Oakland Detroit Zoo Earth Island Institute Elephant Voices Elephant Sanctuary in Tennessee The Fund for Animals Wildlife Center The Global March for Elephants and Rhinos Global Sanctuary for Elephants The Humane Society of the United States SB 716 Page 12 Humane Society Veterinary Medical Association In Defense of Animals Last Chance for Animals The League of Humane Voters Councilmember Paul Koretz, City of Los Angeles Lions, Tigers & Bears LIUNA Locals 777 & 792 March for Elephants and Rhinos San Francisco The Marin Humane Society Oakland Zoo Performing Animal Welfare Society Sacramento SPCA San Diego Humane Society SB 716 Page 13 San Francisco SPCA Santa Clara County Activists for Animals Sierra Club California Sierra Wildlife Coalition SPCA-Los Angeles State Humane Association of California Katy Tang, Supervisor, District 4, City and County of San Francisco Uganda Carnivore Program 6 Private individuals Opposition Asian Elephant Support SB 716 Page 14 Circus Fans Association of America Have Trunk Will Travel, Inc. The Elephant Managers Association International Elephant Foundation Feld Entertainment, Inc. Jack Hanna, Director Emeritus, Columbus Zoo Monterey Zoological Southwick's Zoo Western Fairs Association (Need letter) Zoological Association of America 25 Private individuals Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744