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The Case for ‘Freeing’ Happy the Elephant to be Heard by the New York Court of Appeals

by Claudia Tam Americas Jun 10th 20215 mins
The Case for ‘Freeing’ Happy the Elephant to be Heard by the New York Court of Appeals

On May 4 2021, the New York Court of Appeals made history by agreeing to hear the habeas corpus case of Happy the Elephant, an intelligent and cognitively complex elephant that has been imprisoned in the Bronx Zoo for over 40 years. Happy, the “Bronx Zoo’s Loneliest Elephant,” has lived in solitary confinement in a 1.15-acre exhibit since 2006, after her companion of 25-years Grumpy died in 2002. This marks the first time the highest Court in any English-speaking jurisdiction will hear a habeas corpus case brought on behalf of a nonhuman animal.  

Habeas Corpus For Humans 

Habeas corpus, meaning “show me the body” in Latin, is a common law right that protects against unlawful and indefinite imprisonment. Originating in the Middle Ages in England, a court could grant a writ of habeas corpus, requiring a public official holding a prisoner in custody to produce the prisoner before the court for a judicial inquiry into the legality of their detention. If the court found that the prisoner was being held without a proper legal cause – for instance, being detained without being convicted of a crime by an impartial, competent and independent court of law – the judge could order for their immediate release. Habeas corpus has been used to contest slavery, the detention of refugees in Australia’s offshore processing centers and prisoners in Guantanamo Bay.

Extending Habeas Corpus for Nonhuman Animals: Tommy’s Case

While habeas corpus has traditionally applied to humans, animal rights organisations have recently attempted to extend this right to cognitively advanced animals that face indefinite imprisonment. In 2013, the Nonhuman Rights Project (NhRP) filed a writ of habeas corpus on behalf of Tommy, a chimpanzee living alone in a small, dark, cement cage in a trailer park in New York. In its petition, NhRP argued that Tommy had complex cognitive abilities, including self-autonomy, episodic memory, self-consciousness, intentional communication and the ability to experience pain, which were sufficient to establish personhood. Hence, Tommy was an autonomous being entitled to protections afforded by New York law for legal persons, including the fundamental right to bodily liberty and freedom from unlawful detention. Unfortunately, Tommy’s habeas petition was denied in the Fulton County Supreme Court. Although Judge Sise found NhRP’s arguments impressive and strong, he refused to recognise a chimpanzee as a human or as a person who can seek a writ of habeas corpus. 

The NhRP’s appeal to the New York Court of Appeals was refused in 2018. Although Judge Fahey ultimately agreed with the majority in denying Tommy leave to appeal, he made interesting observations on habeas corpus. He held that the capacity or ability to bear legal duties cannot be a requirement for habeas corpus – contrary to the argument that nonhuman animals are not persons because they cannot bear duties – as human infants and comatose adults who cannot bear duties undoubtedly can seek habeas corpus. He suggested that instead of asking whether a chimpanzee fits the definition of a human or has the same rights and duties as a human, we should instead ask whether a chimpanzee is an individual with inherent value who should be treated with respect, rather than treating chimpanzees as a mere resource for human use or a thing. 

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From Tommy’s Case to Happy the Elephant

Happy’s case follows the trend of nonhuman habeas corpus cases. The NhRP brought Happy’s case in 2018, arguing that Happy should be recognised as a legal person with the right to bodily liberty. They relied on Judge Fahey’s findings in Tommy to argue that Happy, who in a 2005 experiment was the first elephant to pass a mirror self-recognition-test, indicating her self-awareness, and who according to expert scientific evidence possessed complex cognitive and social abilities, possesses the right to bodily liberty, in the same way that infants or humans bereft of consciousness – or even human slaves who were not at the time deemed legal persons – could seek habeas corpus. 

Happy’s habeas corpus case was denied in the Bronx County Supreme Court. Justice Tuitt, who heard the case over three days and was “extremely sympathetic to Happy’s plight,” “regretfully” denied habeas corpus relief, as she felt bound by the finding in Tommy’s case that animals are not “persons” entitled to rights and protections afforded by the writ of habeas corpus. Although Justice Tuitt agreed that Happy was more than just a legal thing or property and is an intelligent, autonomous being who should be treated with respect and dignity and may be entitled to liberty, Happy was found not to be a “person” and hence not to be illegally imprisoned. 

The NhRP appealed Happy’s case to the New York Court of Appeals, which was granted earlier this month. 

Legal Implications Moving Forward

Happy’s habeas corpus case is a new legal frontier, as it is the first time that the New York Court of Appeals – a hugely influential court – will hear a nonhuman animal habeas corpus case. Regardless of the outcome, this case is monumental in terms of access to justice for animals. It recognises the public importance of Happy’s case, and more generally, the compelling plight of imprisoned and captured animals. 

Although giving animals rights may sound bizarre, we should remember that nature is already being conferred legal rights in 28 countries around the world – if rivers and forests are recognised and protected as legal persons, and indeed as Judge Fahey argues unconscious humans, why should intelligent, autonomous animals with cognitive abilities akin to humans not be given legal rights? As we learn more about animal cognition and the distinction between human and nonhuman continues to narrow, the argument for conferring legal protections to animals will only be strengthened. For now, we wait for the New York Court of Appeals to hand down their judgment and hope that eventually an end will be put to the injustice of Happy’s unlawful imprisonment at the Bronx Zoo.

Featured image by: NBCNews

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