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No habeas for Happy: NY court rules elephants aren’t persons

The state’s high court was divided in a ruling against animal activists who sought a writ of habeas corpus to free an Asian elephant from her 1-acre plot at the Bronx Zoo.

ALBANY, N.Y. (CN) — An elephant is legally not a person, the New York Court of Appeals ruled 5-2 Tuesday, closing the door on campaign to free a Thai elephant from her long, lonely residency at the Bronx Zoo.

“Because the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement, it has no applicability to Happy, a nonhuman animal who is not a ‘person’ subjected to illegal detention,” Chief Judge Janet DiFiore wrote for the majority in the 17-page opinion.

While she emphasized that “no one disputes that elephants are intelligent beings deserving of proper care and compassion,” DiFiore added that “habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.”

She also noted the potential slippery slope the case could have on other liberties. “A determination that Happy, an elephant may invoke habeas corpus … would have an enormous destabilizing impact on modern society,” she wrote.

The Nonhuman Rights Project lamented the ruling Tuesday as “not just a loss for Happy … [but] also a loss for everyone who cares about upholding and strengthening our most cherished values and principles of justice.”

In the group's long-running legal battle to have Happy removed to an animal sanctuary in California or Tennessee, it has tapped several experts testify on the various cognitive abilities that human beings and elephants share, among them empathy, awareness of death, memory — even “high-fiving” each other after thwarting predators.

A spokeswoman for the Wildlife Conservation Fund, which owns the Bronx Zoo, did not immediately return an email seeking reaction to the ruling that will keep Happy where she is.

When the Nonhuman Rights Project went to the state’s high court last month for what would have been a groundbreaking reversal, it argued that habeas law historically had been used in numerous cases involving property, such as cases involving women when they were legally chattel and also applied to certain slave rights cases.

With the majority even conceding that a writ of habeas corpus is flexible, Judges Rowan Wilson and Janet Rivera fired off separate dissents — together more than five times the length of DiFiore's opinion — that said Happy is entitled to one.

Wilson reminded the court that the Bronx Zoo had once placed a member of the Mbuti tribe on display in the facility’s monkey house behind iron bars in 1906 and quoted a speech from abolitionist Frederick Douglass in which he enumerated the similarities between humans and horses, and noted how treating slaves and animals as chattel led to dehumanizing brutality.

“The majority pays lip service to Happy’s intelligence,” Wilson wrote in his 70-page dissent. He stated the legal issue in the case was not whether Happy is a “person” but whether he detention violates a statute, noting habeas corpus was and should be used to “address myriad situations in which liberty was restrained,” Wilson noted.

“The Great Writ’s purpose calls for exactly that: a judicious and kindly application of superior power,” he wrote.

Happy originally belonged to a group of seven calves all named for dwarves from the "Snow White" fairy tale. Two of them came to the Bronx Zoo in 1977, but Grumpy was euthanized in 2002 after getting attacked by other elephants in her pen. To protect Happy from meeting the same fate, the zoo has confined her to a 1-acre enclosure where she remains to this day — for the most part in solitary.

The New York Times dubbed Happy as the “loneliest elephant” at the Bronx Zoo in 2015 — a decade after she was recognized 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.

Both Wilson's dissent and Rivera's drew appreciation from Happy's defenders at the Nonhuman Rights Project, calling the opinions “a tremendous victory in a national and global struggle for nonhuman animal rights [that] we’ve only just begun.” Steven Wise, who founded the group, had said at a rally prior to the hearing last month that, regardless of the case’s outcome, the group would bring “many, many more” such cases.

In her 21-page dissent, Rivera supported flexibility for habeas corpus, though she conceded that animals should not be placed on equal footing with human beings.

“Indeed, if a corporation — a legal fiction created to benefit some humans — can have constitutional rights protected in our courts, then the law can recognize an autonomous animal’s right to judicial consideration of their claim to be released from an unjust captivity,” she wrote.

During oral arguments in May, the judge appeared more critical of the notion that habeas could apply to “nonpersons.”

“Even in those examples they’re all human beings,” she said to comparisons about human chattel. “At the end of the day, the court is recognizing the humanity in each of those cases.”

Rivera also noted that the fact Happy cannot be merely set free should not be a factor in denying her habeas protections. “Humans removed her as a calf from her natural habitat. Humans separated her from her herd,” Rivera wrote. “After a lifetime of captivity, in which humans have controlled very aspect of he life, she cannot return, fifty years later, and simply live as would any elephant who grew up in a wild environment.”

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