Article has been updated (new motion filed on 18/4/2018).

Lawyers from the Nonhuman Rights Project (NhRP) in the United States have filed a motion to reargue in their battle to obtain a writ of habeas corpus for three elephants held in captivity for decades as part of a travelling circus.

The lawyers are asking the Connecticut Superior Court to reverse its dismissal of the habeas corpus petition, which the NhRP filed in November last year on behalf of three elephants – Beulah, Minnie, and Karen – who are in captivity at the Commerford Zoo in Goshen, Connecticut.

In its new motion, filed on January 16, the NhRP argues that the superior court made significant errors in its dismissal of the habeas corpus petition, which is the first lawsuit in the world to seek personhood for elephants.

The NhRP  say that “in accordance with state common law and scientific evidence of elephants’ autonomy”, the court should recognise the animals as legal persons with the fundamental right to bodily liberty, and immediately release them to the Performing Animal Welfare Society’s ARK 2000 natural habitat sanctuary, “where they will be able to choose how to live their lives while living in a community of elephants”.

PAWS has already agreed to provide the elephants with a permanent home.

In dismissing the petition on December 26 last year, Judge James Bentivegna said the NhRP “lacked standing”. He said the court did not have subject matter jurisdiction and that the case was “wholly frivolous on its face”.

The NhRP says that the court does have jurisdiction and that its petition cannot be properly labelled a “frivolous” case simply because it is novel. It says it is seeking “a good faith and principled extension of the common law that is well supported by expert affidavits and general principles of law”.

It states: “While this petition raises a novel issue of personhood in Connecticut common law jurisprudence, it is far from ‘wholly frivolous on its face’. To the contrary, it is powerfully meritorious and the writ it seeks has been issued on behalf of nonhuman animals at least four times in other jurisdictions.”

The lawyers say the superior court ignored long-standing Connecticut precedent in concluding that the NhRP did not meet the requirements for third-party standing in a common law habeas corpus action, and relied upon a decision of the US Supreme Court that has not been adopted in Connecticut.

The superior court said that the petitioner filing the habeas corpus lawsuit should have a “significant relationship” with the detainee, unless the detainee has no significant relationships at all, and that the NhRP “failed to allege that the elephants have no significant relationships at all”.

The NhRP says it is clear that the three elephants have no significant relationships with any petitioner able to file a habeas corpus lawsuit on their behalf against their captors.

The lawyers say that, even assuming that the Supreme Court decision does apply, the superior court’s conclusion that the NhRP failed to allege that the elephants lack any significant relationship with someone who would be better placed to bring a case on their behalf is erroneous.

In response to Judge Bentivegna’s ruling last December, the NhRP president, Steven Wise, said that, in each of its prior common law habeas corpus cases in which a court addressed standing, the NhRP had always been found to have standing.

“We are optimistic that we will eventually be found to have standing in this case as well,” he said.

Wise says that Connecticut law provides the NhRP with the opportunity to ask the court to reconsider its ruling “based on the errors we are bringing to its attention”.

He added: “If the court does not agree, we are asking it to allow us to amend our petition to conform with that law.

“If the court denies us on that ground as well, we will appeal. No matter what happens, this is just the beginning of our rights-based litigation on behalf of these and other elephants.”

Wise says that the NhRP’s first elephant rights case is grounded in “abundant, robust scientific evidence of elephants’ autonomy” and cites the elephants’ ability to choose how to live their “emotionally, socially, and cognitively complex lives”.

He points out that, in the habeas corpus petitions, the NhPR is seeking personhood for the animals, not human rights.

The NhRP filed its habeas corpus petition on behalf of Beulah, Karen, and Minnie with the support of world-renowned elephant experts, including the co-founder of ElephantVoices, Joyce Poole, and the programme director at the Amboseli Trust for Elephants, Cynthia Moss, who submitted affidavits.

It has launched a #RumbleForRights for elephants campaign and has provided an online activists’ toolkit complete with graphics and other resources such as legal documents.

The co-owner of the Commerford Zoo, Tim Commerford, has been quoted as calling the NhRP’s lawsuit “preposterous” and “far-fetched”. He says the elephants are appropriately cared for.

Wise says the habeas corpus petition is not an animal welfare case. “We do not claim the Commerford Zoo is violating any animal welfare statutes. What they are doing is depriving Beulah, Karen, and Minnie of their freedom, which we see as an inherently cruel violation of their most fundamental right as elephants.”

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Beulah

Beulah, also known as Beulah Mae, is an Asian elephant who was born in the wild in Myanmar in 1967 and was imported to the US sometime between 1969 and 1973.

In 1973, she was sold to the Commerford Zoo, where she was frequently used in circuses and fairs, was “power-washed” in front of crowds, and obliged to give rides to children and adults.

The Commerford Zoo also used Beulah in commercials and theatrical performances.

The elephant has suffered for years from a foot disorder.

Karen

Karen is an African elephant who was born in the wild in 1981 in an unknown location. Imported to the US by Jurgen C. Schulz – who ran an import-export business for exotic animals and now owns the Kifaru Exotic Animal & Bird Auction – Karen was sold to animal trainer Richard “Army” Maguire in 1984.

Later that year, Maguire sold Karen to the Commerford Zoo, which frequently uses her in circuses and fairs.

Minnie

Minnie, also known as Mignon, is an Asian elephant who was born in the wild in Thailand and imported to the US in 1972 when she was two months old.

Shortly afterwards, Earl and Elizabeth Hammond, who were in search of a baby elephant to incorporate into their traveling petting zoo, purchased her for US$4,000.

The couple transported Minnie from Florida to their New Jersey home in a Volkswagen bus.

To pay the elephant’s bills, Mrs Hammond rented her out for parties, sales promotions, and Republican political gatherings.

In 1976, the Hammonds sold Minnie to the Commerford Zoo, which uses her in Indian weddings, film productions, photo shoots, circuses, and fairs.

The NhRP filed its first habeas corpus petitions in New York in December 2013 on behalf of chimpanzees Tommy, Kiko, Hercules, and Leo.

In 2016, litigation modelled on the NhRP’s lawsuits resulted in the recognition of a chimpanzee, Cecilia, as a legal person with rights in Argentina, and her transfer to a sanctuary in Brazil.

Cecilia

Memorandum of Law in Support of Motion to Reargue

First Amended Verified Petition for a Common Law Writ of Habeas Corpus

Update 19/04/2018

On April 18, the Nonhuman Rights Project filed a Motion for Articulation with the Connecticut Appellate Court.

The motion seeks clarification of the legal and factual basis for two decisions made by Judge James M. Bentivegna: his ruling on December 26 last year and his decision on February 27 this year to deny the NhRP’s Motion to Reargue.

The judge also refused to allow the NhRP to amend its petition for a common law writ of habeas corpus on behalf of the three elephants.

He said this was primarily because the basis of the NhRP’s petition was not constitutionally protected liberty, i.e. a liberty interest protected by the due process clause of the Fourteenth Amendment.

“This may indeed be the kind of liberty that a convicted prisoner needs to invoke habeas corpus in the state of Connecticut,” the NhRP said. “But it never has been the kind of liberty that individuals who are not convicted prisoners, such as our three elephant clients, need to prosecute a common law writ of habeas corpus under the law of Connecticut or anywhere else in the world.”

The NhRP says that, in the new Motion for Articulation, it is asking the Superior Court to adequately explain its reasoning with reference to specific Connecticut judicial precedent, rules, or statutes.

This new legal move follows the filing of a Notice of Appeal by the NhRP on March 16 this year.

“We continue to be fully confident in the social, historical, political, and legal justice of our arguments in support of recognition of the common law personhood and fundamental right to bodily liberty of elephants and other autonomous nonhuman animals,” the NhRP stated. “For this reason, we look forward to reviewing the Superior Court’s fully articulated reasoning.”