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Habeas rights for elephants at heart of Bronx Zoo case

The New York Court of Appeals is wrestling with whether to break ground with a judgment that says Asian elephants are as autonomous as human beings and thus capable of being freed from zoo captivity via lawsuit.

ALBANY, N.Y. (CN) — For Happy, who has spent most of her 51 years at the Bronx Zoo, victory in court could mean acres of land for the Asian elephant to roam in retirement. In the broader legal landscape, though, it could mean greater rights to chimpanzees or other animals.

The judgment is expected after the New York Court of Appeals heard oral arguments Wednesday on whether animal activists have the right to file a writ of habeas corpus on behalf of Happy, a finding that would mean elephants are autonomous and empathetic enough to be awarded rights afforded today only to human beings.

Happy is thought to have been born in 1971 in Thailand, likely in the wild. She was sold for $800 along with six other calves to a California corporation, each named for one of the dwarves in the Snow White fairy tale.

Though she came to the Bronx Zoo in 1977 with another of the elephants, Happy, she has been kept in solitary within a one-acre enclosure since 2006 to protect her from potentially violent younger elephants at the zoo. Grumpy was euthanized in 2002 after other elephants in her pen attacked her. For a time, Happy was kept with a younger female Asian elephant, and she was recognized in 2005 as the first elephant in the world to show self-recognition, repeatedly touching a visible white X mark on her head while looking in a mirror.

It is the position of the Nonhuman Rights Project that Happy has been illegally imprisoned by the zoo, and the group filed a petition in 2018 seeking her release under habeas corpus laws. The group wants Happy released to an animal sanctuary in either California or Tennessee with thousands of acres of land.

The project has tapped several experts testify on the various cognitive abilities that human beings and elephants share, among them empathy, awareness of death and memory. Despite this, a trial court dismissed their habeas petition, claiming Happy was not a person and not entitled to habeas rights.

Years earlier, the project filed a similar habeas corpus petition on behalf of a chimpanzee named Tommy, but a New York appellate court ruled that the ape was not a “person” under the law and thus not able to seek habeas corpus relief. In the case for Happy, dozens of amicus briefs from animal rights activists, veterinary associations and theologians have poured in.

In a bid to differentiate Happy's case from its unsuccessful arguments for Tommy, the project has notably emphasized that habeas corpus is a creation of common law, and not a statute. A trial judge way up by the New York-Canada border granted the petition in 2018, but a Manhattan judge later ruled otherwise on the habeas issue.

Arguing Wednesday before the seven-judge Court of Appeals, attorney Monica Miller of the American Humanist Association called habeas law a “great writ” that was imported to the United States from the Magna Carta. She noted its use across history in numerous cases involving property, such as cases involving women when they were legally chattel as well as in certain slave rights cases.

That argument struck a hitch, however, with Judge Jenny Rivera. “Even in those examples they’re all human beings,” she said. “At the end of the day, the court is recognizing the humanity in each of those cases.”

Happy the Asian elephant has lived at the Bronx Zoo since 1977. (Photo by Julie Larsen Maher/Wildlife Conservation Society via Courthouse News)

Miller said the overwhelming scientific consensus is that elephants are indeed autonomous animals, with complex cognitive abilities, displaying empathy and altruism, and even performing “high-five” celebrations after driving off predators in the wild or mourning rituals when another elephant dies.

Another potential problem that plagued the panel about Happy’s case is that the project seeks to move Happy not into the wild from the Bronx Zoo but to a sanctuary.

“What you’re actually seeking is another type of captivity,” Rivera said. “But how does habeas apply when what you’re simply seeking is a transfer into a different type of captivity under human control?”

Judge Anthony Cannataro later echoed that same point, noting that “this doesn’t exactly seem like liberty to me, it’s just different confinement.”

Miller argued the sanctuaries in California and Tennessee are as similar as possible to being in the wild, and she later noted the petition was not a welfare case because it is nearly impossible to significantly change conditions at the Bronx Zoo, which has agreed to phase out its elephants.

Rivera queried whether it was similar to a prisoner in a special housing unit seeking release into the general prison population.

“No, your honor, because Happy is innocent,” Miller replied.

The Wildlife Conservation Society, which owns the Bronx Zoo, was represented Wednesday by Kenneth Manning of Phillips Lytle. He argued to the court that “there is no illegality whatsoever” because Happy’s place at the zoo has been strictly regulated by the Elephant Protection Act.

As he did in a brief, Manning also took aim at the scientists who submitted affidavits on behalf of moving Happy, calling them “cookie-cutter” from another case in Connecticut and saying none sought to personally examine Happy. “No interest was taken in this particular animal,” he argued, later adding that, "if there is going to be an entire rewrite and the granting of animals of rights they’ve never had before, shouldn’t that be done by the Legislature?”

“There have been millions of words written about this case by the media fascinated by the possibility of granting personhood to animals,” the Wildlife Conservation Society said in a statement prior to the hearing. “At the Bronx Zoo, we are focused on what is best for Happy, not in general terms, but as an individual with a unique and distinct personality.”

A Change.org petition with more than 1.4 million signatures calls for Happy’s release. 

Prior to Wednesday’s hearing, the group fighting for Happy held a rally near the courthouse to protest conditions at the zoo. There, the group's president, Steven Wise, likened Happy’s confinement to human slavery, noting elephants for centuries were not thought to share the same cognitive abilities as humans.

“To make such arguments against elephants having the right to bodily liberty is not merely irrational, it’s historically dangerous, and that goes along a deeply regrettable history of biases,” Wise said during the rally. “Happy’s enslavement is grounded upon the single, irrelevant trait of being a gray elephant and not a human being.”

Over the past few years, the Bronx Zoo has ranked as one of the worst offenders in the world for elephants, and a 2015 New York Times article dubbed Happy the zoo’s “loneliest elephant.”

“Now whether Happy wins or loses, New York’s Court of Appeals decision will be America’s first on the foremost nonhuman animal rights issue of our time, but there will be win or lose many, many more,” Wise said during the rally prior to the hearing.

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