Human Inhumanity: An Unhappy Result

Habeas corpus relief denied by the New York Court of Appeals

For centuries, the common law writ of habeas corpus has safeguarded the liberty rights of human beings by providing a means to secure release from illegal custody. The question before us on this appeal is whether petitioner Nonhuman Rights Project may seek habeas corpus relief on behalf of Happy, an elephant residing at the Bronx Zoo, in order to secure her transfer to an elephant sanctuary. Because the writ of habeas corpus is intended to protect the liberty right of human beings to be free of unlawful confinement, it has no applicability to Happy, a nonhuman animal who is not a “person” subjected to illegal detention. Thus, while no one disputes that elephants are intelligent beings deserving of proper care and compassion, the courts below properly granted the motion to dismiss the petition for a writ of habeas corpus, and we therefore affirm.

Victim blaming

respondent Breheny—Director of the Bronx Zoo—explained that Happy was housed in a separate enclosure adjoining Patty’s because Happy “has a history of not interacting well with other elephants,” but she is nevertheless able to interact with Patty through “sound, olfaction, and touch.” Breheny pointed out—and the elephant sanctuary in question conceded—that unrelated elephants living together in captivity may have acrimonious relationships and,  thus, a transfer could not guarantee Happy increased interaction with other elephants. Petitioner contested this point in reply, asserting that elephants such as Happy may be able to form positive social relationships in a sanctuary environment.

Justice Wilson’s dissent begins with an unpleasant part of Bronx Zoo history

The Wildlife Conservation Society, formerly known as the New York Zoological Society, has operated the Bronx Zoo for well over a century. In 1906, it placed Ota Benga, a member of the Mbuti people, on display in the Zoo’s monkey house, behind iron bars. Two years earlier, Samuel Verner, a South Carolinian white supremacist, had been hired to remove some so-called “pygmies” from what was then the Belgian Congo, for exhibition at the St. Louis World’s Fair. Mr. Benga and eight others were exhibited there, after which Mr. Verner transferred Mr. Benga to the Zoo for exhibition. The Zoo’s attendance doubled; nearly a quarter of a million people came to the Zoo to view Mr. Benga.

Merits here

Two contentions, one irrelevant and one to which the majority and lower courts have offered an unsupportable answer, sow great confusion about the question raised by this appeal. The first, irrelevant, contention is that an elephant is not a “person.” The second, unsupportable, contention is that only humans can have rights.

The majority analysis

What is patent from the glommed-together authorities is that they do not prove anything relevant here. Cases that do not raise an issue cannot be taken to resolve something never at issue. Statutes or cases allowing that humans may own animals do not establish that owned beings can have no justiciable rights. The question here is not governed by any prior decision: it is novel. The novelty of an issue does not doom it to failure: a novel habeas case freed an enslaved person; a novel habeas case removed a woman from the subjugation of her husband; a novel habeas case removed a child from her father’s presumptive dominion and transferred her to the custody of another (see infra section II). More broadly, novel common law cases—of which habeas is a subset—have advanced the law in countless areas (see infra section IV). The majority’s argument—“this has never been done before”—is an argument against all progress, one that flies in the face of legal history. The correct approach is not to say, “this has never been done” and then quit, but to ask, “should this now be done even though it hasn’t before, and why?

Justice Rivera

Happy, an Asian elephant, has been held in captivity at the Bronx Zoo for decades. She is on display for the Zoo’s visitors, who observe her from above while riding the Zoo’s monorail. When they spot her, Happy likely stands nearly still, staring, swaying slightly, lifting and lowering one foot (see Jill Lepore, The Elephant Who Could Be A Person, Atlantic [Nov. 16, 2021] https://www.theatlantic.com/ideas/archive/2021/11/happyelephant-bronx-zoo-nhrp-lawsuit/620672/). The Zoo has called this ride the “Wild Asia Monorail” and promises that it will take patrons “into the heart of the Asian wilderness” (Bronx Zoo, Wild Asia Monorail, https://bronxzoo.com/things-to-do/exhibits/wild-asiamonorail-seasonal [last visited June 3, 2022]). This is, quite simply, a fantasy. Visitors will not observe Happy in anything remotely resembling her natural environment. She does not, as she would in the wild, roam free with the other members of her herd—consisting of her mother, sisters, cousins, and potentially grandmothers—in Thailand, where she was born. She cannot—as is the common practice for the herd from which she was taken when she was a baby calf—spend the vast majority of her waking hours traversing significant distances with her family to exercise, forage, and socialize (see World Wildlife Fund, Asian Elephant, https://www.worldwildlife.org/species/asian-elephant [last visited June 3, 2022] [describing Asian elephants as “extremely sociable, forming groups of six to seven related females that are led by the oldest female, the matriarch,” who “spend up to 19 hours a day feeding . . . while wandering around an area that can cover up to 125 square miles”]).

The Zoo instead confines her in a one-acre indoor “elephant barn”—the same area that a human, walking at a moderate pace, would cross in about 30 seconds. Happy has limited access to an even smaller, walled outdoor area. Happy has outlived the other elephants that were similarly brought to this miserable existence, with one exception. The two are kept separated, though the Zoo permits them to occasionally touch trunks through the bars of their enclosures. Any myth that Happy is content in this environment is laid bare by the cruel reality of her existence. Day in and day out, Happy is anything but happy. There lies the rub—Happy is an autonomous, if not physically free, being. The law has a mechanism to challenge this inherently harmful confinement, and Happy should not be denied the opportunity to pursue and obtain appropriate relief by writ of habeas corpus. I dissent.

Life with dignity

Captivity is anathema to Happy because of her cognitive abilities and behavioral modalities—because she is an autonomous being. Confinement at the Zoo is harmful, not because it violates any particular regulation or statute relating to the care of elephants, but because an autonomous creature such as Happy suffers harm by the mere fact that her bodily liberty has been severely—and unjustifiably—curtailed. Happy’s confinement by human beings has never been intended to benefit her but serves only to entertain and satisfy human curiosity, regardless of the loss of freedom to Happy. She is held in an environment that is unnatural to her and that does not allow her to live her life as she was meant to: as a self-determinative, autonomous elephant in the wild. Her captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive—a spectacle for humans—we, too, are diminished.

(Mike Frisch)