The Sad Case of Happy the Elephant

by Danny O’Connor, Managing Editor, University of Cincinnati Law Review Vol. 91

I. Introduction

Happy the (ironically named) elephant was born in Asia in the 1970s before being captured and brought to the United States as a one-year-old.1Happy the Elephant is not a Person, a Court Rules, NPR (June 14, 2022), https://www.npr.org/2022/06/14/1105031075/bronx-zoo-elephant-not-person-court-rules. She arrived at the Bronx Zoo in 1977, where she shared her confinement with another elephant, Grumpy.2Id. Tragically, Grumpy died from a fatal confrontation with two other elephants in 2002.3Id. Happy has lived in solitary confinement ever since, and the conditions of her captivity prompted fervent opposition from animal rights activists and organizations.4According to the Nonhuman Rights Project’s website, eighteen amici briefs were filed with the New York Court of Appeals by a total of 146 and groups – all arguing for her immediate release. These filers included the prominent legal scholar and Harvard professor Laurence Tribe, a former Justice of South Africa’s Constitutional Court, Buddhist scholars, philosophers and legal scholars from across the globe, and theologians. See Nonhuman Rights, Amicus Support to #FreeHappy, NONHUMAN RIGHTS BLOG (Apr. 25, 2022). https://www.nonhumanrights.org/blog/freehappy-amicus-support/.

Leading this growing coalition opposed to Happy’s continued captivity at the Bronx Zoo was the Nonhuman Rights Project (“NhRP”). NhRP took the extraordinary measure of filing a writ of habeas corpus in New York State court on Happy’s behalf—a novel legal strategy intended to expand rights for animals.5Nancy E. Halpern, New York’s Highest Court Affirms Motion to Dismiss Petition for Writ of Habeas Corpus for Happy, the Elephant, Fox Rothschild LLP (June 16, 2022), https://animallaw.foxrothschild.com/2022/06/16/new-yorks-highest-court-affirms-motion-to-dismiss-petition-for-writ-of-habeas-corpus-for-happy-the-elephant/. In the summer of 2022, after working its way up the state’s appellate system, the New York Court of Appeals issued a highly anticipated decision determining Happy’s fate. According to the majority opinion, the specific question the state’s highest court considered was whether the law allowed NhRP to seek habeas relief and have Happy transferred from the Bronx Zoo to an elephant sanctuary.6Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022).

In a 5-2 decision, the Court resoundingly rejected the arguments advanced by NhRP, holding that the writ of habeas corpus is intended to protect the liberty rights of human beings–automatically unapplicable to Happy.7Id. at 2. Although the thrust of the majority opinion forcefully opposed the legal stance of NhRP and the dissenters, the Court did acknowledge the deeper questions implicated by the case: “We close with the observation that, despite the relative simplicity of the legal issue presented, this case has garnered extraordinary interest from amici curiae and the public— a testament to the complicated and ever-evolving relationship between human beings and other animals. Though beyond the purview of the courts, we appreciate that the desire and ability of our community to engage in a continuing dialogue regarding the protection and welfare of nonhuman animals is an essential characteristic of our humanity.  Such dialogue, however, should be directed to the legislature.” Id. at 17.

While the majority framed the legal issues as simple and straightforward, the dissenting opinions offered a starkly different perception of the case. The analysis offered by the dissents implicated profound questions about the purpose of the ancient writ of habeas corpus, the meaning of legal personhood, and the very concept of liberty in the American legal tradition. Accordingly, the next section of this article will provide a breakdown of the primary conclusions reached by the majority and dissents. Section III will then explore the framework of statutory animal rights codified by state legislatures and Congress. Section III will further consider whether these statutory rights, consisting primarily of state and federal animal cruelty laws, sufficiently balance the societal benefits of holding animals in captivity with the overall wellbeing of those animals. This article concludes in Section IV challenging readers to re-evaluate their understanding of the relationship between animals and humans, and how the law can reform to further account for these understandings.

II. Background

a. The Majority Opinion

The majority opinion began its analysis by elaborating on the history and purpose of the writ of habeas corpus to discern whether Happy could be considered a “person” entitled to the writ’s relief.8Id. at 7. After a slew of citations relaying the historical development of the writ of habeas corpus, the majority honed in on their core conclusion–that the writ only allowed for imprisoned human beings to challenge the legality of their confinement.9Id. at 8. According to the majority, the mere confinement of Happy at the zoo was not enough for NhPR to invoke the writ on her behalf. Petitioners had to further demonstrate that the confinement demonstrably violated Happy’s legal rights.10Id. Furthermore, the majority concluded that pursuant to New York law, habeas relief is only appropriate when the petitioner would become entitled to “immediate release upon the writ being sustained.”11Id.

Addressing the legality of Happy’s confinement, the majority espoused a fear that if Happy’s status at the Bronx Zoo constituted a violation of her legal rights, such a holding would burst open a Pandora’s box of future claims brought on behalf of nonhuman animals.12Id. at 13 (“With no clear standard for determining which species are entitled to access the writ, who has standing to bring such claims on a nonhuman animal’s behalf, what parameters to apply in determining whether a confinement is ‘unjust,’ and whether ‘release’ from a confinement otherwise authorized by law is feasible or warranted in any particular case, courts would face grave difficulty resolving the inevitable flood of petitions.”). The majority articulated intense hostility to the dissent’s preference for a more flexible use of the writ to determine whether, in some instances, the conditions of an animal’s confinement could entitle them to habeas relief. According to the majority, the dissenters failed to identify any intelligible standard addressing how such a flexible usage would operate in the courts.13In a particularly scathing line of reasoning on this point, the majority went as far as describing the dissent’s “wholly unsatisfactory attempts” to discern such a standard as “divorced from practical reality, devoid of support, and demonstrates the internally contradictory foundation on which their analyses are built.” Id. Further bolstering this point, the majority pointed out that Happy’s confinement was authorized by New York law, and that the Bronx Zoo had complied with all relevant state and federal regulations concerning the housing and care of animals in zoos.14Id. at 11.

Finally, the majority noted that the fact Petitioner’s were seeking to have Happy transferred from one place of confinement (the zoo) to a different place of confinement (an unidentified elephant sanctuary) doomed any argument that Happy could have cognizable liberty interests to protect through the writ of habeas corpus.15Id. at 12. According to the majority, equating Happy’s right to enjoy her remaining years of captivity in “a more natural environment” with the liberty interest encompassed by habeas relief would further complicate any attempt to create a consistent legal standard applicable to future habeas cases for nonhuman animals.16Id.

b. Judge Wilson’s Dissent

Encompassing the thrust of the arguments offered by NhRP and amici, Judge Wilson of the New York Court of Appeals offered the following conclusions in opposition to the majority’s arguments: (1) whether Happy is a “person” capable of bearing legal duties is irrelevant to determining whether Happy is entitled to habeas relief; (2) the history of the writ of habeas corpus demonstrates that courts have often used it to enhance liberty interests, even when the conditions of a petitioners captivity are authorized by law; (3) our society’s changed understanding of the rights of enslaved persons, women, and children demonstrates the ability of the writ to broaden the scope of protectable liberty interests over time; and (4) courts can adapt and expand the writ in the same way it adapts and expands the common law in conformity with evolving societal norms.17Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022) (Wilson, J., dissenting).

Addressing the irrelevance of Happy’s legal personhood to invocation of the writ of habeas corpus, Judge Wilson noted that Article 70 of New York’s Civil Practice Laws and Rules provided no substantive meaning of “person.”18Article 70 of the New York Civil Practice Laws and Rules provides for the process of administering the writ of habeas corpus. The particular provision to which Judge Wilson referred reads in part: “A person illegally imprisoned or otherwise restrained in his liberty within the state . . . may petition without notice for a writ of habeas corpus . . . A judge . . . having evidence, in a judicial proceeding before him, that any person is so detained shall . . . issue a writ of habeas corpus for the relief of that person.” Id. at *10 (Wilson, J., dissenting) (quoting N.Y. C.P.L.R. 7002). Just as the word “person” is used expansively in other areas of the law to refer to fictional, nonhuman entities,19Business organizations, such as corporations and limited liability companies, are treated as legal persons. so too can the use of the word “person” in the context of New York’s statutory law governing habeas relief extend to Happy.20Id. at *11 (Wilson, J., dissenting).

In support of his other conclusions, and refuting the authorities cited by the majority, Judge Wilson pointed out that the novelty of the issue before the court obviously meant there would be little basis in existing law for upholding Happy’s rights through the writ of habeas corpus; by itself, however, that was an insufficient reason to conclude Happy was altogether precluded from habeas relief.21Id. at *14 (Wilson, J., dissenting). From there, Judge Wilson offered a powerful analysis of the historical use of the writ to recognize the legal personhood of slaves, women, disabled persons, and children, all of whom the law did not recognize as legal “persons” at the time they were first granted habeas relief.22Although the full substance of this portion of the argument is beyond the scope of this article, an especially cogent argument on this point is offered by Judge Wilson in his reciting of the case Lemmon v. People, in which the New York Court of Appeals upheld the use of the writ on behalf of eight slaves seeking liberation from their incarceration in Richmond, New York. See Breheny, 2022 WL 2122141, at *16-17 (Wilson, J., dissenting).

In laying the groundwork for his ultimate conclusions, Judge Wilson pointed out that Happy’s case was before the New York Court of Appeals on an appeal from a motion to dismiss. Therefore, the question was not whether Happy had a cognizable legal right to be transferred from the Bronx Zoo to a more suitable sanctuary, but whether Happy was entitled to a hearing to determine if her rights were capable of protection through habeas relief.23Id. at *30 (Wilson, J., dissenting).

III. Discussion

Against the backdrop of both the majority and dissenters’ arguments is the notion of whether, and to what extent, nonhuman animals have cognizable legal rights protectable through legal processes–in Happy’s case, the writ of habeas corpus. As the dissenters and amici point out, the writ does not itself establish special rights for “persons,” but instead seeks to protect other substantive rights from curtailment by unlawful incarceration.24See, e.g., Brief for Animal Legal Defense Fund as Amici Curiae in Support of Petitioner-Appellant at 5, Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022) (“Presumptions that equate being a person with a human being are incorrect because “person” is a legal term that simply describes any entity with at least some legally protected rights.”). As it turns out, Happy has quite a few substantive rights. New York law prohibits Happy from being subjected to overwork, torture, and numerous other forms of abject cruelty.25See N.Y. Agric. & Mkts. Law § 353. Additionally, the Animal Welfare Act, originally passed by Congress in 1966, has established a substantial regulatory framework bestowing legal protection to animals against cruel and inhumane treatment at the hands of their human captors.26See 7 U.S.C. §§ 2131-2160.

While the majority appropriately highlights the very real concern of an already overburdened court system potentially becoming further bogged down by an avalanche of animal-habeas petitions, the dissenters are equally correct in their assertion that similar slippery-slope arguments have a sinister history of barring the door to protecting the rights of society’s most vulnerable. It stands to reason that Happy’s status as an elephant–coupled with her captivity at the Bronx Zoo–is insufficient to preclude her entitlement to, at a minimum, a hearing considering the merits of a habeas action.

The amicus brief submitted by the Animal Legal Defense Fund in Happy’s case highlighted the development of animal cruelty laws to protect individual animals themselves, rather than protecting human beings’ ownership interests in animals.27Brief for Animal Legal Defense Fund as Amici Curiae in Support of Petitioner-Appellant at 9, Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022). See also State v. Nix, 334 P.3d 437, 447 (Ore. 2014) (“Although early animal cruelty legislation may have been directed at protecting animals as property of their owners or as a means of promoting public morality, Oregon’s animal cruelty laws have been rooted – for nearly a century – in a different legislative tradition of protecting individual animals themselves from suffering.”). With that in mind, society should be cautious in assuming those rights are firmly rooted or incapable of evolving alongside an advanced understanding of animals and nature. Expounding this point, Judge Wilson pointed out the arbitrariness of the majority dismissing Happy’s case based on her being an elephant:

We grant children and disabled persons rights simply because we, as a society, want to.  Whether we do so because we see ourselves in them, because God commands us to, because we fear a slippery slope of eugenics, because we are charitably inclined, or for some other reason, does not matter; the point is that we can, and constantly do, grant rights to living beings who bear no responsibilities and may never be able to do so.28Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141, at *13 (N.Y. June 14, 2022) (Wilson, J. dissenting).

Furthermore, rejecting habeas relief to Happy on the grounds that it would only accomplish removing her from the Bronx Zoo to another form of captivity was a particularly flimsy basis on which the majority rested their holding. As far back as eighteenth century England, the writ was invoked for the purpose of transferring children from the custody of one parent to another–largely to protect the safety and wellbeing of the child.29See Dallin H. Oaks, Habeas Corpus in the States: 1776-1865, 32 U. Chi. L. Rev. 243, 270-271, 273-274 (1965).

IV. Conclusion

While Happy will most likely spend the remainder of her days in solitary confinement at the Bronx Zoo, her case provides a unique opportunity to reflect on the relationship between human beings and animals, as well as society’s general conception of basic liberty rights. Who has these rights? To what extent do they have them? And, most importantly, why do they have them? Although there are serious impracticalities with granting relief through the writ of habeas corpus to an otherwise legally captive elephant, that Happy is an elephant is an unconvincing reason for denying her relief altogether. The question should instead rest on society’s most current understanding of the impact of confinement on Happy’s physical and mental state, whether that impact constitutes a form of abuse under existing animal cruelty laws, and the balance between those considerations and society’s interests in holding animals captive. As human society is forced to seriously re-evaluate its relationship with the natural world amidst rapidly accelerating climate change, so too should it grapple with the fact that it is not the master of all living things.


Cover Photo by Eric Heininger on Unsplash

Author

  • Prior to law school Danny O'Connor worked as a campaign manager in the 2017 Cincinnati mayoral election and as a development professional for the University of Cincinnati Foundation. Danny’s writing for the law review has focused on contemporary issues in products liability and bankruptcy. After graduation, Danny will join the real estate practice group at Graydon Head & Ritchey here in Cincinnati. Outside of law school, Danny is an avid basketball fan – with a strong preference for the NBA. Read Danny's published Student Note, All of the Products, None of the Liability: Examining the Supreme Court of Ohio's Decision in Stiner v. Amazon.com, Inc., at the hyperlink below.

References

  • 1
    Happy the Elephant is not a Person, a Court Rules, NPR (June 14, 2022), https://www.npr.org/2022/06/14/1105031075/bronx-zoo-elephant-not-person-court-rules.
  • 2
    Id.
  • 3
    Id.
  • 4
    According to the Nonhuman Rights Project’s website, eighteen amici briefs were filed with the New York Court of Appeals by a total of 146 and groups – all arguing for her immediate release. These filers included the prominent legal scholar and Harvard professor Laurence Tribe, a former Justice of South Africa’s Constitutional Court, Buddhist scholars, philosophers and legal scholars from across the globe, and theologians. See Nonhuman Rights, Amicus Support to #FreeHappy, NONHUMAN RIGHTS BLOG (Apr. 25, 2022). https://www.nonhumanrights.org/blog/freehappy-amicus-support/.
  • 5
    Nancy E. Halpern, New York’s Highest Court Affirms Motion to Dismiss Petition for Writ of Habeas Corpus for Happy, the Elephant, Fox Rothschild LLP (June 16, 2022), https://animallaw.foxrothschild.com/2022/06/16/new-yorks-highest-court-affirms-motion-to-dismiss-petition-for-writ-of-habeas-corpus-for-happy-the-elephant/.
  • 6
    Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022).
  • 7
    Id. at 2. Although the thrust of the majority opinion forcefully opposed the legal stance of NhRP and the dissenters, the Court did acknowledge the deeper questions implicated by the case: “We close with the observation that, despite the relative simplicity of the legal issue presented, this case has garnered extraordinary interest from amici curiae and the public— a testament to the complicated and ever-evolving relationship between human beings and other animals. Though beyond the purview of the courts, we appreciate that the desire and ability of our community to engage in a continuing dialogue regarding the protection and welfare of nonhuman animals is an essential characteristic of our humanity.  Such dialogue, however, should be directed to the legislature.” Id. at 17.
  • 8
    Id. at 7.
  • 9
    Id. at 8.
  • 10
    Id.
  • 11
    Id.
  • 12
    Id. at 13 (“With no clear standard for determining which species are entitled to access the writ, who has standing to bring such claims on a nonhuman animal’s behalf, what parameters to apply in determining whether a confinement is ‘unjust,’ and whether ‘release’ from a confinement otherwise authorized by law is feasible or warranted in any particular case, courts would face grave difficulty resolving the inevitable flood of petitions.”).
  • 13
    In a particularly scathing line of reasoning on this point, the majority went as far as describing the dissent’s “wholly unsatisfactory attempts” to discern such a standard as “divorced from practical reality, devoid of support, and demonstrates the internally contradictory foundation on which their analyses are built.” Id.
  • 14
    Id. at 11.
  • 15
    Id. at 12.
  • 16
    Id.
  • 17
    Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022) (Wilson, J., dissenting).
  • 18
    Article 70 of the New York Civil Practice Laws and Rules provides for the process of administering the writ of habeas corpus. The particular provision to which Judge Wilson referred reads in part: “A person illegally imprisoned or otherwise restrained in his liberty within the state . . . may petition without notice for a writ of habeas corpus . . . A judge . . . having evidence, in a judicial proceeding before him, that any person is so detained shall . . . issue a writ of habeas corpus for the relief of that person.” Id. at *10 (Wilson, J., dissenting) (quoting N.Y. C.P.L.R. 7002).
  • 19
    Business organizations, such as corporations and limited liability companies, are treated as legal persons.
  • 20
    Id. at *11 (Wilson, J., dissenting).
  • 21
    Id. at *14 (Wilson, J., dissenting).
  • 22
    Although the full substance of this portion of the argument is beyond the scope of this article, an especially cogent argument on this point is offered by Judge Wilson in his reciting of the case Lemmon v. People, in which the New York Court of Appeals upheld the use of the writ on behalf of eight slaves seeking liberation from their incarceration in Richmond, New York. See Breheny, 2022 WL 2122141, at *16-17 (Wilson, J., dissenting).
  • 23
    Id. at *30 (Wilson, J., dissenting).
  • 24
    See, e.g., Brief for Animal Legal Defense Fund as Amici Curiae in Support of Petitioner-Appellant at 5, Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022) (“Presumptions that equate being a person with a human being are incorrect because “person” is a legal term that simply describes any entity with at least some legally protected rights.”).
  • 25
    See N.Y. Agric. & Mkts. Law § 353.
  • 26
    See 7 U.S.C. §§ 2131-2160.
  • 27
    Brief for Animal Legal Defense Fund as Amici Curiae in Support of Petitioner-Appellant at 9, Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141 (N.Y. June 14, 2022). See also State v. Nix, 334 P.3d 437, 447 (Ore. 2014) (“Although early animal cruelty legislation may have been directed at protecting animals as property of their owners or as a means of promoting public morality, Oregon’s animal cruelty laws have been rooted – for nearly a century – in a different legislative tradition of protecting individual animals themselves from suffering.”).
  • 28
    Nonhuman Rts. Project, Inc. v. Breheny, No. 52, 2022 WL 2122141, at *13 (N.Y. June 14, 2022) (Wilson, J. dissenting).
  • 29
    See Dallin H. Oaks, Habeas Corpus in the States: 1776-1865, 32 U. Chi. L. Rev. 243, 270-271, 273-274 (1965).

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