Orleans County issues first habeas corpus on behalf of elephant

(J.B. Forbes/St. Louis Post-Dispatch/MCT An Asian elephant takes a stroll around its enclosure at the St. Louis Zoo in 2013. A court order in Orleans County involves Happy the elephant, who currently lives at the Bronx Zoo in New York City.

ALBION — On Friday, the Orleans County Supreme Court issued a habeas corpus order on behalf of an elephant and scheduled a hearing to determine whether she should be released from her imprisonment in the Bronx Zoo.

This is the second time in United States legal history and the first time anywhere on behalf of an elephant a habeas corpus has been issued for a nonhuman animal; the case was brought in front of the Hon. Tracey A. Bannister by Nonhuman Rights Project (NhRP) who are seeking to secure the fundamental right to bodily liberty of an elephant named Happy. They want her immediate release from the Bronx Zoo, and if she is released, the NhRP will urge the court to order her transfer to an elephant sanctuary where she can meaningfully exercise her autonomy to the greatest extent possible, including having the opportunity to live and interact with other elephants.

According to the press release from the NhRP, Happy is a 47-year-old Asian elephant who was born in the wild and imported to the US when she was a baby. In 1977 she was relocated from the Lion Country Safari in Florida to the Bronx Zoo. For the last twelve years, the zoo has housed Happy in a portion of its 1.15-acre exhibit, separated from elephants Patty and Maxine who, in 2002, fatally injured Happy’s longtime elephant companion Grumpy. In the winter, Happy lives in a cage in a holding facility.

“The core problem we’re trying to address is that all animals are considered legal things with no rights, which makes it really hard for advocates to get them out of situations where they might not be abused physically, but the situation they live in would be unjust and a source of tremendous suffering,” said Lauren Choplin, communications director for the NhRP.

In a press release, NhRP President Steven M. Wise said world-class experts have found that “Happy is an autonomous being who evolved to walk 20 or more miles a day as a member of a multi-generational large social group. The entirety of the zoo’s elephant exhibit provides far less than even one percent of the space she would roam in a single day in the wild. She doesn’t belong to a social group. Her autonomy is thwarted daily. This has got to stop.”

In 2013, NhRP filed its first lawsuits on behalf of chimpanzees and two of those chimpanzees are now in a sanctuary while two others are still NhRP clients. The organization than took on elephant clients in Connecticut last year and Happy is its fourth elephant client. Choplin said the NhRP had been paying attention to her situation for some time now, and in May New York Court of Appeals Judge Eugene Fahey wrote in a concurring opinion in the NhRP’s chimpanzee rights cases on behalf of Tommy and Kiko that “the issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching,” and that “there is no doubt that (a chimpanzee) is not a thing.” In June, New York’s Fourth Judicial Department, of which the Orleans County Supreme Court is a part, cited to the NhRP’s case on behalf of Kiko in People v. Graves, writing, “[I]t is common knowledge that personhood [i.e. the capacity to bear legal rights] can and sometimes does attach to nonhuman entities like ... animals.”

Choplin said the Bronx Zoo is five hours away from Albion, and filed in the New York’s Fourth Judicial Department, feeling the jurisdiction would be more likely to consider the justice of their arguments.

“For us, the fact that court issued an order to show cause on behalf of an elephant without necessarily questioning if an elephant can have a writ of habeas corpus was profoundly important to us, and that’s the first time in the world an elephant has been issued an order to show cause,” she said. “Basically what that means is the legal representation for the Wildlife Conservation Society and the Bronx Zoo have to come into court on this day and justify their detainment of Happy.”