A judge in the United States has denied a habeas corpus application made on behalf of an elephant in the Bronz Zoo, but the Nonhuman Rights Project (NhRP) says it is “deeply encouraged” by her concluding comments and is preparing its appeal.

In her ruling, Justice Alison Y. Tuitt of the Bronx Supreme Court said she was “regrettably” denying habeas corpus because she felt bound by prior appellate court decisions in the NhRP’s chimpanzee rights cases.

However, Happy’s lead attorney and president of the NhRP, StevenWise, said that Justice Tuitt’s ruling was “powerfully supportive” of the NhRP’s legal arguments that Happy should be released from the Bronx Zoo and transferred to a sanctuary.

“Justice Tuitt essentially vindicated the legal arguments and factual claims about the nature of nonhuman animals such as Happy that the NhRP has been making during the first six years of our rights litigation,” Wise said.

Wise said he was “deeply encouraged” that Justice Tuitt had “embraced” the merits of the NhRP’s case. “We are already working on our appeal,” he added.

“After six years of litigation by the Nonhuman Rights Project, the anachronistic legal idea that all nonhuman animals are legal things and not persons with fundamental legal rights is beginning to crumble in New York State.”

In her ruling, issued on February 18, Justice Tuitt said she agreed with the conclusion reached by the New York Court of Appeals Justice Eugene M. Fahey that an elephant, like a chimpanzee, is not merely a “thing”.

She said: “This court agrees that Happy is more than just a legal thing, or property. She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.”

Nonetheless, the judge said, the court was “constrained by the caselaw to find that Happy is not a ‘person’ and is not being illegally imprisoned”.

Justice Tuitt said that “the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo” to an elephant sanctuary on a 2,300-acre lot.

“Nevertheless,” she added, “in order to do so, this court would have to find that Happy is a ‘person’ and, as already stated, we are bound by this State’s legal precedent.”

Justice Tuitt said the court was “extremely sympathetic” to Happy’s plight and the NhRP’s mission on her behalf.

“It recognises that Happy is an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytic abilities akin to human beings.”

Happy is a 48-year-old, wild-born Asian elephant who was captured in Thailand and brought to the United States in the 1970s. She has been held at the Bronx Zoo since 1977 and has lived alone since 2006.

She is currently being held in an industrial cement structure lined with windowless, barred cages – the zoo’s “elephant barn” – while the elephant exhibit is closed for the winter.

The Wildlife Conservation Society (WCS), which manages the Bronx Zoo, insists that she is happy and healthy where she is.

The director of the WCS, James Breheny, said: “Every day Happy’s keepers assess her body condition, provide her with various forms of enrichment that encourage mental and physical stimulation, and engage in positive reinforcement training sessions …”

Breheny argues that Happy’s interest would not be best served by moving her to an animal sanctuary. He says that Happy has a history of not interacting well with other elephants at the zoo and becomes distressed when she is moved even a short distance. The NhRP counters both of these arguments.

Wise says that elephant experts such as Joyce Poole and Cynthia Moss state clearly that Happy, like all elephants, wants and needs to live freely and this includes having the opportunity to meaningfully interact with other members of her species. She cannot do this in the Bronx Zoo’s elephant exhibit, he says.

Wise emphasises the difference between animal welfare and nonhuman animal rights.  He says the NhRP’s arguments are not about whether the Bronx Zoo is violating any animal welfare laws or the minimal standards set by the Association of Zoos and Aquariums.

“They are about whether the Bronx Zoo is unlawfully imprisoning Happy and violating her right to liberty as an autonomous being,” he said.

In late 2018, Happy became the first elephant in the world to win a habeas corpus hearing.

She made history in 2005 as the first elephant to demonstrate self-awareness via the mirror test.

The NhRP’s grassroots advocacy campaign on behalf of Happy has drawn the support of such influential public figures as Queen guitarist Brian May, New York City Council Speaker Corey Johnson, and animal advocates in New York and around the world.

In October 2019, Mayor Bill de Blasio commented on Happy’s plight, telling WNYC radio that “something doesn’t feel right” about keeping Happy in the Bronx Zoo.

A Change.org petition calling for Happy’s release from solitary confinement has garnered more than 1.3 million signatures.

The NhRP’s executive director Kevin Schneider said: “While we lament Happy’s continued imprisonment, we thank Justice Tuitt for breaking ground on the long road to securing liberty and justice for Happy and other autonomous nonhuman animals.

“Happy’s freedom matters as much to her as ours does to us, and we won’t stop fighting in and out of court until she has it.”

Wise said during his arguments in the Bronx Supreme Court in January this year that Happy’s habeas corpus case was not just about the cause of one poor elephant. “It is about the cause of liberty,” he said.

It was the third time that the NhRP lawyers had put forward arguments in the Bronx Supreme Court in support of Happy’s right to liberty.

Justice Tuitt has now heard about 13 hours of arguments on the merits of Happy’s case, including hearings in September and October last year.

Minnie

The NhRP is also fighting for freedom for another elephant, Minnie, who is the sole surviving elephant held captive in the Commerford Zoo travelling circus.

Minnie was born in the wild in Thailand and imported to the US in 1972 when she was two months old. The NhRP says she is still being held captive on a ramshackle farm in Goshen, Connecticut.

Two other elephants, Beulah and Karen, who were also held in the Commerford Zoo, have died.

Beulah collapsed and died at the Big E fair in Massachusetts in September last year. Days later, the United States Department of Agriculture confirmed that Karen had died the previous March.

Wise and his team are appealing against a lower court’s dismissal of its second habeas petition in Minnie’s case.

They are urging the courts to recognise Minnie as a legal person with the fundamental right to liberty and order her immediate release to The Elephant Sanctuary or the Performing Animal Welfare Society sanctuary.

Minnie at Commerford Zoo. Photo by Jennifer Fermino for Animal Defenders International.

Connecticut Superior Court justice Judge Dan Shaban dismissed the second petition in February last year on the grounds that the second and first petitions were “exactly alike” and were brought “to adjudicate the same issues”.

The first petition, brought on behalf of Beulah, Karen, and Minnie, was dismissed by superior court justice Judge James Bentivegna in December 2017.

The two cases are not alike, Wise says. “Even if they were, the NhRP was permitted to bring a second petition as the first petition was not dismissed on its merits and therefore could be brought again,” he added.

The NhRP says there were “serious legal errors” in the Connecticut Appellate Court’s ruling in August last year that Justice Bentivegna “properly declined to issue a writ of habeas corpus on standing grounds” in the case of the Commerford elephants.

In its arguments against Justice Bentivegna’s dismissal of its first petition for habeas corpus on behalf of Beulah, Karen, and Minnie, the NhRP said that the judge erred not only in dismissing the NhRP’s petition on the grounds that was frivolous, but also in claiming that the NhRP lacked standing to bring the claim because it lacked a relationship with the elephants.

For two centuries, Connecticut courts have permitted anyone to seek habeas corpus on behalf of someone who is imprisoned and unable to seek habeas corpus himself or herself, Wise says.

“This case is about the injustice of imprisoning an autonomous being like Minnie, especially alone, and treating her as a legal ‘thing’ with no rights simply because she isn’t human,” he added.

Update

On January 8 this year, the NhRP presented arguments in Minnie’s case in the Connecticut Appellate Court.

Steven Wise says that oral argument lasted just over 25 minutes and, for 15 of those minutes, a panel of three judges confined themselves to asking question after question about issues unrelated to the merits of Minnie’s case.

This was frustrating, Wise says. “We were there to insist once again on a hearing on the merits of Minnie’s case, i.e. on the question of whether Minnie is a legal person with the fundamental right to bodily liberty protected by the common law writ of habeas corpus.

“Regarding this core issue, the court limited us to less than ten minutes,” Wise said.

Wise says the Connecticut courts have ruled against the NhRP on the merits of the case without giving the NhRP a chance to argue the merits.

“We informed the appellate court that this is fundamentally unfair,” he said.

“It remains the case that the Appellate Court’s prior decision in Minnie’s case is riddled with serious legal errors and totally unlike any decision in habeas corpus history. This is deeply troubling.”

Wise added: “Minnie will suffer every day she is kept in servitude as a rightless being. If she is not released to a sanctuary, she will die as a prisoner in the custody of the Commerford Zoo just as Beulah and Karen have.”

The NhRP has asked the appellate court to order a hearing en banc, i.e. involving all the judges of the court, to rehear Minnie’s case, “grant us the full and fair hearing to which we are entitled, and overturn its previous decision”.

Supreme court ruling ‘has significant bearing on Minnie’s appeal’

The NhRP has filed a letter notifying the Connecticut Appellate Court of a recent decision issued by the Connecticut Supreme Court – the state’s highest court – that it says has a direct and significant bearing on Minnie’s appeal.

In Anthony Gilchrist v. Commissioner of Correction , the trial court dismissed a habeas corpus petition under Practice Book 23-29 rather than Practice Book 23-24.

These two practice books are similar procedural statutes that permit courts to deny a habeas corpus petition on various specified grounds.

The Connecticut Supreme Court found that, because the trial court had not issued the writ of habeas corpus, it committed a fatal error in dismissing the petition under Practice Book 23-29.

Practice Book 23-24 applies only before issuance of the writ, when the trial court must promptly review the petition to determine whether it is patently defective, i.e. to determine whether the writ should be issued.

Practice Book 23-29 applies only after the writ has been issued, when the habeas proceeding that will determine whether the trial court should grant the relief sought in the petition has begun.

The Connecticut Supreme Court noted that, while the trial court’s ruling may seem “hypertechnical,” technical “matters of form” will sometimes have meaningful consequences, “and it is important to employ the correct terminology and procedures when disposing of a writ of habeas corpus”.

The NhRP says the supreme court’s ruling is extremely significant to Minnie’s appeal.

“In her case, as in Gilchrist, no writ was issued and yet the trial court dismissed the petition under one of the provisions in Practice Book 23-29, not Practice Book 23-24,” Wise said.

“This error should cause the appellate court to reverse the trial court’s dismissal of the petition and remand the case back to the trial court, which may or may not issue the writ of habeas corpus.”

The NhRP would then appeal against any adverse decision, taking the case back up to the appellate court.

NhRP discovers the causes of elephant deaths

The NhRP has learned more about the causes of the deaths of Beulah and Karen.

Beulah, the lawyers have discovered, died as a result of blood poisoning caused by a uterine infection.

The NhRP says the Commerford Zoo was aware that Beulah had the infection when she was taken in a trailer from Connecticut to Massachusetts to be exhibited at the Big E Fair.

“Blood poisoning, also known as septicemia, causes intense suffering, no matter your species,” the NhRP said.

“Beulah’s final hours – documented in photos of her lying on her side in a parking lot the day she died – marked an horrific end to an equally horrific life.”

Beulah

The NhRP received the information about the cause of Beulah’s death from US Senator Richard Blumenthal, whose staff contacted the US Department of Agriculture with urgent questions about the agency’s regulation of the Commerford Zoo under the Animal Welfare Act.

“The USDA’s answers highlight the agency’s total lack of common sense in its so-called oversight of animal exhibitors as well as the ineffectiveness of animal welfare laws in protecting elephants from needless suffering and death,” the NhRP’s Director of Government Relations and Campaigns, Courtney Fern, said.

“It is unconscionable to transport a sick, elderly elephant to stand for hours every day for two weeks in a parking lot at a fair. That the USDA considers this an acceptable way to treat elephants is also unconscionable, if unsurprising, and underscores the urgent need for recognition of elephant rights.”

The NhRP has also learned that Karen died of kidney disease at the age of 38.

“Karen had been receiving what the USDA considers “appropriate care” at the time of her death,” Fern said.

“While much remains unknown about how long Karen had been sick, or if she was suffering from other ailments when she died, we know she died at a much earlier age than elephants typically do.

“We also know ‘appropriate care’ is meaningless if you remain a prisoner subjected to forced labour.”

The NhRP says that both Beulah and Karen’s lives and deaths were tragedies.

“They were avoidable tragedies,” Fern said. “The Commerford Zoo chose to deny Beulah and Karen the opportunity to heal, thrive, and regain their dignity in a sanctuary, claiming it was for the elephants’ own good while the USDA looked the other way.

“We’ll keep fighting in and out of court for Minnie, the sole surviving Commerford elephant, to not suffer the same fate.”

Co-owner of the Commerford Zoo, Tim Commerford, has said that Beulah and Karen were appropriately cared for. He has denied allegations that there has been mistreatment of elephants at the zoo, and said they were like members of the Commerford family.

Karen labouring under the threat of a bullhook at the Meadowlands State Fair in New Jersey. This was the last time Karen was seen in public before her death. Photo: Gigi Glendinning.

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