Fight For Elephant Rights Continues In New York
Litigation - Article Series from All-Creatures.org Articles Archive

FROM Nonhuman Rights Project
July 2020

Today the Nonhuman Rights Project (NhRP) filed its appeal in its habeas corpus case on behalf of Happy, a 49-year-old wild-born Asian elephant the NhRP maintains is unlawfully imprisoned in a Bronx Zoo exhibit.

Photo: Gigi Glendinning

Today the Nonhuman Rights Project (NhRP) filed its appeal in its habeas corpus case on behalf of Happy, a 49-year-old wild-born Asian elephant the NhRP maintains is unlawfully imprisoned in a Bronx Zoo exhibit.

The NhRP is asking the New York Supreme Court, Appellate Division, First Department to recognize Happy’s common law right to bodily liberty, reverse the Bronx Supreme Court’s dismissal of Happy’s habeas petition, and remand the case with instructions to order Happy’s release to The Elephant Sanctuary in Tennessee: “This Court has the duty to safeguard and uphold the fundamental common law liberty interest of autonomous beings,” writes the NhRP in its appellate brief. “As Happy is an autonomous being, this Court must recognize her right to bodily liberty protected by habeas corpus and order her freed.”

In February of 2020, Bronx Supreme Court Justice Alison Y. Tuitt issued a decision in Happy’s case after over 13 hours of oral argument, writing that the Court “agrees [with the NhRP] that Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty … the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo to an elephant sanctuary.”

However, Justice Tuitt dismissed Happy’s habeas petition because “regrettably … this Court is bound by the legal precedent set by the Appellate Division when it held that animals are not ‘persons’ entitled to rights and protections afforded by the writ of habeas corpus.”

In 2018, as favorably cited to by Justice Tuitt, New York Court of Appeals Justice Eugene M. Fahey issued a concurring opinion in which he urged his fellow judges to treat the question of nonhuman animals’ rightlessness as “a deep dilemma of ethics and policy that demands our attention … The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it.” Justice Fahey also criticized the Appellate Division decisions in the NhRP’s chimpanzee rights cases, making clear they were wrongly decided on the grounds that the NhRP’s clients aren’t members of the human species and cannot bear legal duties.

“The First Department has the opportunity to do the right thing by correcting these serious errors of law and giving Happy a chance to experience the freedom, peace, and dignity of a sanctuary where formerly imprisoned elephants, including those traumatized by solitary confinement in zoos and circuses, have been able to heal and thrive,” said Elizabeth Stein, an attorney with the NhRP and Happy’s local counsel.

In 2005, Happy made history as the first elephant to demonstrate self-awareness via the mirror test. In 2018, she made history again as the first elephant to have a habeas corpus hearing after the NhRP initiated her case, which draws on centuries of common law precedent and robust scientific evidence of elephants’ cognitive, emotional, and social complexity. Five of the world’s most respected elephant experts, including Dr. Joyce Poole and Dr. Cynthia Moss, have submitted unrebutted affidavits in support of Happy’s case.

In May of this year, the Chief Justice of the Islamabad High Court in Pakistan described Happy as an “inmate” at the Bronx Zoo. Relying in part on Justice Tuitt’s decision and Justice Fahey’s opinion, Chief Justice Athar Minallah affirmed “without any hesitation” the rights of nonhuman animals and ordered the release of an elephant from a zoo to a sanctuary.

The Wildlife Conservation Society continues to claim Happy doesn’t get along with other elephants despite abundant evidence to the contrary, including her relationship with an elephant named Grumpy who was euthanized after two other elephants held in the exhibit fatally attacked her.

Alongside the NhRP’s litigation, its grassroots advocacy campaign on behalf of Happy has gained significant momentum and drawn the support of such influential public figures as Queen guitarist Brian May, New York City Council Speaker Corey Johnson, and animal advocates in New York and around the world. Meanwhile, a Change.org petition calling for Happy’s release from solitary confinement has over a million signatures and continues to grow.

The NhRP expects to argue its appeal this fall. The Wildlife Conservation Society has until August 12th to file its reply brief.

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