On 18 February 2020, Justice Truitt of the Bronx Supreme Court issued a decision on the habeas corpus proceeding brought by the Non-human Rights Project (NhRP) on behalf of Happy, a 48-year-old Asian elephant currently situated in the Bronx Zoo, New York.
The NhRP alleged Happy was being unlawfully imprisoned and demanded her immediate release to an appropriate elephant sanctuary.[1]
Ultimately, while expressing sympathy, the court found itself constrained by caselaw and dismissed the petition.
Background and Summary
The habeas corpus proceeding was brought by the NhRP on behalf of Happy, commencing on 2 October 2018 in the Orleans County pursuant to Civil Practice Law and Rules (CPLR) Article 70.
Subsequently, the Bronx Zoo (the respondent) moved to change the venue of the proceedings to Bronx County and on 18 January 2019, Orleans Country Court granted the motion to change the venue and the matter was transferred. A preliminary injunction requesting Orleans County Court to remove Happy from the State of New York pending the outcome was also transferred.
The NhRP alleged that Happy is unlawfully imprisoned and should be released to an appropriate sanctuary, of which two in the US have agreed to provide lifetime care at no cost to the Bronx Zoo. Accordingly, the NhRP were seeking:
Issuance of a writ of habeas corpus;
An order to show cause demanding the respondents demonstrate the basis for imprisonment of Happy;
If it is determined that Happy is unlawfully imprisoned, an order directing her immediate release to an appropriate sanctuary; and
An award for the NhRP for costs and disbursements.
The respondents moved to dismiss the petition, arguing that:
New York law holds that habeas corpus protection under CPLR Article 70 should not extend to animals.
Happy is a 48-year old, female Asian elephant, who was captured from the wild and brought to the US at the age of one. Happy arrived in Bronx Zoo in 1977, where she lived with another elephant, Grumpy, for 25 years.
In 2002, Happy and Grumpy were paired with two other elephants in the same exhibit, Patty and Maxine. Patty and Maxine subsequently attacked Grumpy, who was seriously injured and ultimately euthanised.
Happy was accordingly separated from Patty and Maxine and introduced to Sammie, a younger, female elephant. Sammie suffered from severe liver disease and euthanised in 2006.
The Bronx Zoo then announced that they would not acquire any more elephants and since 2006, Happy has been living alone.
Arguments by the NhRP
The NhRP argued that regardless of whether the respondents are in violation of federal, state or local animal welfare laws, their detention of Happy is unlawful, emphasising that this did not concern unsuitable conditions or improvements of welfare, but the recognition of Happy’s alleged common law right to bodily liberty.
Accordingly, the NhRP were seeking Happy’s immediate release to facilitate recognition of her liberty and autonomy.
The NhR submitted the following, relying on evidence by five world-renowned experts on the cognitive abilities of elephants:[2]
Happy has complex cognitive abilities sufficient for common law personhood and common law right to bodily liberty; and
Imprisoning Happy in such an environment violates her common law right to bodily liberty.
Additionally, the NhRP sought to emphasise that the experts on behalf of the respondents were not published and had not studided or examined any elephants in the wild or in any other zoos.
(i) Happy’s Cognitive Abilities
In support of the argument that Happy possesses complex cognitive abilities sufficient for common law personhood and the common law right to bodily integrity, the NhRP submitted evidence from experts to the effect that African and Asian elephants share many complex cognitive abilities with humans.
To illustrate this, experts submitted that elephants demonstrate an awareness of death, through engagement in mournful or grief stricken behaviour such as standing guard over the body of decreased family and group members, covering the body in dirt and vegetation, and movements being slow with few vocalisations.
Further, experts submitted that elephants portray empathy, evidenced by their engagement with protection, comfort, consolation, and helping those in need.
Additionally, the NhRP emphasised that Happy was the first elephant to pass the mirror self-recognition (MSR) test, which is indicative of her self-awareness.
(ii) Happy’s Environment
The NhRP also considered the environment in which Happy is “imprisoned”, submitting evidence from experts to the effect that it is “un-elephant friendly”, unnatural and ignores her autonomy and social, emotional and bodily liberty needs.
The three locations available to Happy (and other elephants in the zoo) include:
An indoor holding area (or “elephant barn”);
A walled, outdoor elephant yard (of approximately 0.05 of an acres); and
A zoo exhibit (of 1.15 acres).
The NhRP submitted expert evidence in relation to Happy’s environment, which can be summarised as follows:
Happy has no general problem getting along with other elephants and is not anti-social, albeit faces the risk of being attacked;
Happy has only been given the choice of four companions, two of which she got along with, which is confirmation that the zoo cannot meet her basic needs;
In rebuttal of the argument by the respondents that Happy dislikes change and moving her to a sanctuary elsewhere would be detrimental to her health, elephants similar to Happy, when moved to an appropriate sanctuary, almost immediately blossomed into happy, socially and emotionally fulfilled beings; and
An appropriate space allows elephants to develop healthy social relationships and engage in natural behaviour, of which it was observed Happy was currently not (from videos captured by visitors, Dr Poole observed that Happy’s behavior of standing and facing the gate or fence and standing with one or two legs lifted off the ground was atypical).
Arguments by the Respondents
The respondents argued that:
New York State precedent is clear that (non-human) animals are not entitled to habeas corpus protection under CPLR Article 70;
The NhRP expert evidence provides little or no relevant information on whether Happy is unlawfully imprisoned;
Bronx Zoo complies with the AZA Standards for Elephant Management and Care and the Animal Welfare Act and accordingly, Happy is not unlawfully imprisoned; and
It is not in Happy’s best interests to move her to a sanctuary.
(i) New York State Precedent
This point will be addressed below.
(ii) The NhRP Expert Evidence
The respondents argued that Happy is not unlawfully imprisoned (and took issue with the evidence submitted by the experts for the NhRP.
It was argued that:
The affidavits were verbatim duplicates of each other;
The affidavits were generalised, anecdotal discussions of African and Asian elephants in the wild, and made no reference to Happy and her needs and well-being; and
Elephants that have lived in zoos for long periods are significantly different from elephants in the wild and accordingly the affidavits submitted by the NhRP experts have limited applicability to Happy and her situation.
(iii) Compliance with the Relevant Standards for Elephant Care
The relevant standards for an AZA-accredited institution in the US, which Bronx Zoo is, are:
The AZA Standards for Elephant Management and Care; and
The Animal Welfare Act.
The AZA standards broadly require:
Outdoor habitats that provide sufficient space and environmental complexity to allow for natural behavioural activities and social interactions;
Variation in the elephant’s environment;
Regular access to water sources; and
Obligations relating to diet, exercise, medical management, foot care and skin care.
Further, to remain AZA-accredited, the Bronx Zoo is required to submit annual reports on their elephant program and are regulated inspected. It was also emphasised that the AZA confirmed that the Bronx Zoo was in compliance with the standards for elephants.
The Bronx Zoo is also regulated under the AWA and Animal Welfare regulations, and while no specific requirements are stipulated for elephants:
Animals must receive humane care and treatment at regulated facilities;
Zoos must employ an attending veterinarian; and
Inspectors make routine, unannounced inspections of facilities to ensure compliance at least once per year.
To further evidence their capabilities to best care for Happy, the respondents outlined their care programme that is in place for elephants, which incorporates AZA standards and AWA requirements.
The respondents accordingly argued that Happy’s conditions are not unlawful on the basis of compliance with the above mentioned regulations and standards.
(iv) Happy’s Best Interests
As noted above, the respondents argued that the NhRP expert evidence did not take account of Happy’s particular circumstances and needs. Accordingly, the respondents argued that Happy’s interests would not be best served by moving her to a sanctuary as:
Bronx Zoo has significant resources for Happy’s care and well-being;
Happy has longstanding relationships and familiarity with her keepers and surroundings; and
Happy has a history of not interacting well with other elephants and past experiences of distress with moves within the zoo.
Relevant Case Law
The following cases were considered by the court in coming to the decision to dismiss the petition.
All four cases were brought by the NhRP in respect of “imprisoned” chimpanzees and each argued that they were entitled to habeas corpus relief as their human-like characteristics rendered them persons.
In each case the trial court declined to grant the petition and the NhRP appealed in each instance. The appeal affirmed the decision in all four cases.
(i) People ex rel. NhRP v. Lavery 998 NY.S.2d 248 (Third Department 2014)
The NhRP argued that the chimpanzee was a person entitled to fundamental rights and while the respondents were in compliance with the state and federal statutes, the statues themselves were inappropriate. Accordingly, the NhRP asked the court to enlarge the common law definition of a person to afford legal rights to an animal.
The court declined and held that the chimpanzee was not a person entitled to the protections and rights afforded by the writ of habeas corpus as chimpanzees cannot bear any legal duties or be legally accountable for their actions, and so it would be inappropriate to confer legal rights upon them.
(ii) NhRP ex rel. Hercules and Leo v. Stanley 16 NY.S.3d 898 (NY Sup. Ct. 2015)
The NhRP were seeking an order for release and transfer of two chimpanzees in the custody of the respondent, albeit the conditions of the chimpanzees were not challenged.
It was held that the chimpanzees were not persons entitled to protections and rights afforded by the writ of habeas corpus and accordingly, the petition was denied and proceedings dismissed.
(iii) NhRP ex rel. Kiko v Presti 999 NY.S.2d 652 (Fourth Department 2015)
The NhRP argued that a chimpanzee was illegally confined and kept in unsuitable conditions. The NhRP therefore sought the transfer of the chimpanzee to another facility.
The court dismissed the petition on the grounds that habeas corpus did not lie where only a change of conditions of the confinement was sought, rather than an end to the confinement itself.
The question of whether the chimpanzee was a person was not addressed, however it was noted that even if the chimpanzee was deemed a person, habeas corpus would not apply as it is well-settled that it must be denied where the subject of the petition is not entitled to immediate release.
(iv) NhRP ex rel. Tommy v. Levery 54 NY.S.3d 392 (First Department 2017)
The court declined to extend habeas corpus relief to two chimpanzees on the basis that the human-like characteristics of chimpanzees did not render them persons for the purposes of habeas corpus relief, and any position to the contrary was without precedent.
Further, it was emphasised that the cognitive and linguistic capabilities of the chimpanzees did not translate to capacity or ability to bear legal duties like human beings.
Moreover, the court stated that even if habeas corpus relief was available to the chimpanzees, it would be denied as the NhRP did not challenge the legality of the detention, they merely sought to transfer the chimpanzees to a more appropriate facility.
Decision and Reasoning of the Court
Ultimately, it was held that Happy was not a person and was not being illegally imprisoned and the petition was dismissed.
Judge Truitt however agreed that Happy was more than just a legal “thing”, or property, and emphasised that the arguments by the NhRP were extremely persuasive.
Nevertheless, Judge Truitt found herself bound by state’s legal precedent and noted that according any fundamental legal rights to animals was better suited to the legislative process.
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Footnotes.
[1] Two elephant sanctuaries in the US had agreed to take Happy, the Professional Animal Welfare Society (PAWS) in California and the Elephant Sanctuary in Tennessee.
[2] The NhRP submitted expert scientific affidavits from Joyce Pool, Lucy Bates, Richard W. Byrne, Karen McComb and Cynthia J. Moss.