Happy, the elephant in the courtroom

Monday 12 October 2020

Part I The story of Happy is a family saga which makes us look again at the way we treat animals


The story I’m about to tell is sad in parts, sometimes cruel, sometimes full of good intentions. It’s a family saga, and a courtroom drama.

It’s about how we live with animals, what we do to them and what they are entitled to expect from us.

Next month, an important case will come before five appeals court judges in New York. But the plaintiff won’t be in court to hear it. She’ll be behind bars a few miles away, where she’s been for over 40 years.

Her feelings won’t be hurt by the experts in court arguing about whether she’s got the mental capacity – whether she’s smart enough – to qualify for rights you and I take for granted. We’ve talked to a few people who’ve met her, and they’d all agree she’s pretty thick-skinned.

She won’t hear the legal arguments about the enormous impact her case could have on animal rights in the US and maybe around the world – even though she’s got very big ears.

I’m Sam Weinberg, and this is the story of Happy – the elephant in the courtroom. 

Welcome to 1970s America: Watergate, the end of the Vietnam war, Hollywood, the birth of Apple…

We are in California, just south of LA…

This is the world that greeted a young elephant, wrenched from her home and family, packed into a crate and shipped to the other side of the world. She was not yet two years old.

But she was always a little special.

Back in New York in the 1970s, Happy was a celebrity. She wore a blue-and-black polka-dotted dress trimmed with tassels and studded with rhinestones. Once a year, while thousands of people cheered her on, she’d do a tug-of-war against teams of jocks – and always win.

Twenty years ago she hit the headlines again, this time for being smart rather than strong. She was the first elephant ever to take an experiment designed to test if an animal is self-aware enough to recognise itself – and she passed. That was quite a moment. It’s key to this whole story, and we’ll come back to it in episode two.

Now Happy is 49 years old and making what could be her biggest news splash of all. She’s caught up in a high-octane battle over her future – about whether she stays in the Bronx Zoo, where she’s lived for 43 years, or she’s moved to an elephant sanctuary in Tennessee.

Next month, those five judges could change her life with one bang of the gavel. The decision – and what could be Happy’s retirement years – rests on whether the man who calls himself Happy’s lawyer can convince the court that an elephant can be a legal “person” and, if so, that she’s being unlawfully detained in one of America’s most-venerable zoos.

Happy’s case is about more than her future. It’s about our relationship with the animals that live among us, and which sustain us – as food, as clothing, or in any number of industrial processes. There are over 600,000 animals and birds in around 10,000 zoos worldwide. In Britain alone, we keep around 51 million animals as pets – at the last estimate. There are more tigers in captivity in China than in the wild in the whole world. And, as we have found out this year, the way we interact with animals can have deadly consequences.

And so if Happy becomes the first elephant to be granted rights like we have – the right to bodily freedom – the trumpet could sound on a new era, and not just for her. How much do we really know about the animals around us – in our homes, our zoos, our farms and our factories? And is now the time to start rewriting their place in our world?

The end of those big arguments is some way off. But we know where they might begin; in the New York Supreme Court in just a few weeks with the case of Happy the elephant.

Let’s go back to the beginning: Thailand, in 1972. Seven baby elephants were rounded up and wrenched out of their lives in the forest. They were packed into crates and loaded onto a ship which steamed across the Pacific to Lion Country Safari Park in California. They’d been bought for $800 each.

Along with Happy were six others who – although they weren’t blood relatives, became, to all intents and purposes, her second family.

And what do you call seven small elephants? Well obviously, Happy, Grumpy, Sneezy, Sleepy, Bashful, Dopey… and I always forget the other one… oh that’s right, Doc!

The seven baby elephants were taken to Lion Country, up in the dry Laguna Hills…

Now way back then though, it’s not that long ago. There were no buildings out there. Nothing. Yeah, it was, it was cattle grazing area. 

That’s Greg MacGillivray. He’s a film director who’s lived in Laguna his whole life and filmed in Lion Country around that time. He doesn’t remember the baby elephants. But he remembers well the scenery that they stepped into when they were unloaded from their crates. And it’s a world away from the humid, green forests of Thailand…

And when Lion Country leased the property they leased kind of this rolling hills with lots of groves of eucalyptus, light brown or almost yellow grass. And they leased quite a big area and enough so that they get to have all these animals roaming wild.

One of the interesting things about making this podcast has been how difficult we’ve found it to speak to people who care for or train elephants. They’re scared of what could happen if they talk. We’ll come back to the reasons why later – but finding people who knew Happy when she was growing up from a calf to an adult has been impossible. But we can piece together her early years.

Here’s what we know: Lion Country Safari in Laguna opened in 1970. It closed in 1984, but it saw a lot of trouble in its short life.

In 1978, Bubbles the hippo escaped. She rolled down a hill and died after being shot with tranquilliser darts by rangers.

In July 1983, a few years after Happy left, an elephant called Misty threw off her tethers and stomped her trainer to death, before going on a three-hour rampage…

Soon after the seven baby elephants got to Laguna, Sleepy died. Asian elephants in the wild can live about as long as humans, and Sleepy wouldn’t have been more than a couple of years old when she went to sleep and never woke up.

We understand enough about elephants now to know that Happy would probably remember an incident like that:

Having been taken away from her mother and her own family unit, her close female within her family, a calf of that age would immediately look to form bonds with someone and that would be the companions she has around her. So within that group of six, they may not have all been equally as bonded to each other, but they would have been close alliances formed and, and close friendships formed as, as a sort of a replacement as a proxy for, for her maternal relationship.

That’s Lucy Bates, an expert in elephant cognition. And like almost everyone we speak to in this story, actively engaged in the arguments about Happy’s future.

Sleepy’s death is just one of the reasons Laguna Hills would have been a really stressful place for a young elephant to grow up. The same year that Misty killed a warden, a chimpanzee attacked and injured its trainer, and a two-year old boy was mauled by a tiger.

And so for Happy, her early life, which would more-normally be spent in the midst of a big, noisy, multi-generational family, learning how to be an elephant, was full of upheaval, and loss. And then, suddenly, the six remaining elephants were on the move.

From Laguna Hills, they were transported across the United States to Lion Country’s other safari park, a couple of miles outside Palm Beach in Florida. A few years later, they were split apart again.

While Happy’s life is the heart of our story, there are six other stories to tell. Well five, since, sadly, Sleepy never made it beyond California.

There was Doc. For ten years, Doc was passed around various performing-elephant outfits, before being sold to his final home in 1988: Bowmanville Zoo in Ontario, Canada.

His role, like a lot of elephants in zoos back then, was to wow the crowds. The famous circus elephant trainer Rex Williams called Doc the best-looking elephant in North America. Rex taught Doc some tricks…

It was fun for the crowds but deadly for Doc. In 1990, while he was doing a hindleg walk – something an elephant would never do in the wild – Doc broke his leg. It never properly healed. Mike Hackenberger – the zoo owner – claims Doc was the only elephant injured under his watch, and after his accident the hindleg walk was never performed there again.

But it was a classic case of shutting the barn door after the elephant had fallen. Bowmanville Zoo was taken to court charged with animal cruelty and subsequently closed.

But not before, in 2008, aged just 37 and still suffering from the after-effects of his old injury, Doc was put down.

Traditionally, elephants were trained using the ankus or bull hook, which is a stick with a sharp, pointy hook at the end. It seems amazing to me that some elephants – and tigers and lions, too – are still trained like this, to do stuff that doesn’t come naturally to them: balancing on a ball; doing a handstand.

That’s been phased out in a lot of zoos and animal parks – certainly in the ones accredited to the American Association of Zoos and Aquariums.

In these places, techniques for training animals generally, and elephants specifically, have, moved on. In giant, elephant-sized strides, you might say.

What is so funny is one of my friends realised… for the first time, she just came in the room because my initials are E-L-I, Ellie.

Here’s Erin Ivory; with that name, she was clearly born to work with elephants. Erin started her career training dolphins and orcas at Sea World. Later, she got a masters degree in animal behaviour. All the while she was working with elephants, and the people who trained and kept them, at zoos and wildlife parks around the world. She’s a co-founder of Elephant Care International, which helps to train people who train – and care for – elephants, and she’s currently head of mammals at North Carolina Zoo, which has six elephants.

Now traditional elephant management tends to focus more on positive punishment and negative reinforcement.

So the application of an adversive to decrease the like punishment is decreasing the likelihood of a behaviour. So let’s say you were to have an elephant that was standing still and that moving forward, and you wanted them to move forward and they didn’t, then they would take the ankus and they would apply it to the back of the leg, applying pressure. Whether that was just gentle pressure or hard pressure, it’s applying something to the back of that that’s uncomfortable. So then the elephant would move away when they…

Sam: And this is the traditional way in the East and the West?

Erin: Yeah. Horse training, elephant training, I mean, um, it’s pretty common with dogs, the leashes with the colours that pinch that’s positive punishment and negative reinforcement.

That was elephant training past:

Now to the present – and future:

So positive reinforcement training, getting away from dominance control, moving towards choice and control for the animal and making sure sure that our relationship was based on positive interactions.

We don’t use the word “no”. Any incorrect behaviour we use what’s called an LRS – Least Reinforcing Scenario. So it’s like a three second pause to let them know that something wasn’t right. And if the animal, like the elephant, is calm during that three seconds during kind of like the reset, you can reinforce them for calm behaviour.

So basically you’re teaching them that failure is okay. It’s a part of learning and that you’re working on it together. So sometimes the mistake might be on the elephant’s part. Sometimes it might be on my part.

So when I say positive reinforcement, what that means is that you’re rewarding behaviours that you want to see increase. So reinforcement is to increase the likelihood of behaviour will continue; positive simply means you’re adding something to the situation. So when you have positive reinforcement, you’re adding something to the situation to increase the likelihood of that.

So most people associate that with food. So if your dog sits, you ask your dog to sit and they do so, and you give them a treat – that’s positive reinforcement.

It sounds quite like the star chart tacked on the kitchen wall when our children were young. It’s a thought that sticks with me throughout this story: is just being kinder to animals enough?

Erin’s philosophy is all about building a relationship between the individual elephants and their trainers and keepers.

So all of these animals, you know, they recognise you as an individual. You’re not just a sea of like, “oh there comes the person in the right shirt that’s going to feed me”. They recognise you. And the relationship that they have with you is just as important as the relationship you have with them.

And they don’t treat all keepers the same. They don’t like all people the same. So it is a one-on-one relationship. I feel that in some of these higher social species, especially like elephants, it is a lot more about that individual relationship that you have with them. You have some elephants that, like our elephant Tanga here at the zoo, she loves tactile. So if you rub her brow, she loves it. She would rather do that than anything. But, you know, some other elephants that’s not necessarily as reinforcing for them.

What Erin is saying, in effect, is that the elephants’ human carers become their family, too. In Happy’s case, her third family.

My dog, Ethi, is 14 and a ½. We have taught her tricks: to roll over, sing, and, yes, to walk on her hind legs. Doc’s story made me think about that: was it wrong? Is there a difference between a dog dancing and an elephant prancing?

So that’s Sleepy and Doc, both sadly deceased. We’ve still got Happy and four other members of her thrown-together family to account for…

Bashful and Dopey were sold to Howard Johnson’s circus in May 1978, and then moved on to a ranch in California that provided performing elephants for films, shows and rides.

Then in 1993, some say after California banned the use of the ankus or bull hook (which the Johnsons referred to, slightly disingenuously, as the “guide”), Bashful and Dopey were sold to the George Carden Circus, based in less-liberal Missouri.

This is the sound of one of Carlton Circus’ performances. I’ve never seen it before, but my producer, Matt, has asked me to watch it and to describe it:

Okay. So the elephants are coming in one by one, holding each other’s tails and they’ve all got… Fancy dressed women riding them with wings on. The elephants do a pirouette, faster and faster, and everyone’s spinning round.

Now the elephants have all turned to the centre and mounted onto these stools – all four legs. Oh, gosh. And then the second elephant rises up and puts its four legs on the first elephants bum. And then the third one rises up and puts them on the second one’s bum, and then they go get down. And then they sit. And then they sit on their stools.

Thankfully the elephants are now leaving the circus arena. I found that really, really upsetting. I didn’t know before, before we started on this podcast, whether it would affect it, have affected me or whether, if I’d been there, I would have found it rather thrilling. But now from what I heard, everything I’ve learned about elephant sensitivity and empathy and, and intelligence and how proud and inspiring they are in the wild, I find it really, really upsetting to see that.

I’m going to cry. Oh, that was horrible.

Bashful and Dopey – who now go by the rather prosaic names of Jaz and Cindy – travel with the circus, train and eat with the circus. And the circus says the elephants are part of the family.

The Carden circus, America’s biggest and also, according to the animal rights group PETA, one of its worst circuses, for how it treats its animals, is on the road for 38 weeks a year – in normal times. Here’s Lucy Bates, again…

I would say elephants in circuses are worse off because not only are they sort of by the very nature of it being a traveling institution, there’s probably only going to be at the most, maybe two or three elephants in the circus. And because it’s traveling, the vast quantity of their time is spent totally confined in very small traveling boxes, I suppose.

So there’s even less chance of social interaction as even more, this sort of greater return in their autonomy, because they’re confined. They have no choice when they do get to a place where the circus is stopping, you know, they might be built a sort of temporary enclosure, but even within that, because of just obviously the strength of elephants versus the kind of temporary nature of what they’re building, within that they still spend vast periods of their time chained, so that they can’t walk very far. They can’t do anything that they want to do. And often, you know, they’ll only be given food or water at certain times of the day.

So even like the most basic choice of when you get to take a drink of water, you don’t have. And so I think for those reasons, yes, circus elephants are even worse off. And, you know, obviously a lot of modern zoos are trying very hard and I don’t want to sort of disparage zoos necessarily.

You know, a lot of them try very hard, they understand the issues, but the fact remains fundamentally a zoo is never going to be able to recreate everything that I think an elephant needs.

At the extreme ends, there’s a palpable difference between circuses and zoos like the Bronx. Given what goes on in circuses, why is Happy at the centre of this story?

The people behind circuses, and zoos, as well as animal rights activists, all believe – at least they all say they believe – that their animals’ welfare is at the heart of everything they do. They just don’t think the same can be said of the others.

George Carden, the straight-talking, Rolex-wearing, owner of the circus, said a few years ago that he wouldn’t replace any of the circus’s 12 remaining elephants once they died or retired.

George Carden: I’ve been on a circus longer than the Felds owned Ringling Brothers Circus.

And of course my father that adopted me and raised me, he was in the circus prior to that.

Once they get too old and have to be retired, there is no more…

But, before the pandemic hit, Carden Circus was still performing and, sure enough…

Bashful and Dopey, in spangled anklets and ornate headdresses, were centre stage.

Sneezy, the fifth of the baby elephants who came with Happy from Thailand, plays a different role. On the face of it, a better one.

Sneezy lives at Tulsa Zoo in Oklahoma, with two other elephants, after the oldest elephant there, Gunda, passed away two years ago.

And Sneezy had a built-in advantage. He’s a bull elephant, a male. And, for an endangered species, that means he’s valuable; breeding bulls were rarer than females– called cows – in the 80s and 90s, perhaps because, since they’re bigger and stronger and often more violent, fewer bulls were imported to America. Over the years, other zoos have courted Sneezy for their breeding programs.

He probably doesn’t know it, but Sneezy is a father of two.

In that respect, he’s testament to one of the most crucial roles of modern zoos: protecting endangered species through breeding programmes. Over the past 75 years, the population of wild Asian elephants is thought to have halved. As human populations boom, and illegal trade in ivory continues to flourish, the lives of wild elephants are under ever-greater threat. Zoos like San Diego and many others, are now in a position to try to introduce captive-bred Asian elephants to the wild.

Something has happened over the last 30 or 40 years. An additional burden has fallen to zoos and that is, we are now tasked with preserving populations of animals.

That’s Grey Stafford, director of Director of Conservation at the Wildlife World Zoo and Aquarium in Phoenix, Arizona and presenter of the podcast, Zoo Logic.

That is a big task. Whether those populations live in the wild, whether they live in human care or whether they live in some sort of hybrid situation where we’re, we’re preserving in the wild, but also nurturing them in human care and returning them to wild and continuing that genetic cycle, because those animals are under threat from poaching or habitat loss or any number of other pressures.

That’s very difficult in part because not all animals are the same. They don’t, you know, a species of salamander might require this temperature and this humidity and this kind of habitat to reproduce, and this sort of photo period, and another species requires something different. So each species, each genus, each family might require something different than we already know. So we’re studying the problem even as we’re trying to mitigate the problem on a global scale. But the net result is, I’m sad to say Sam, that in our lifetime, yours and mine, we have lost some 60 per cent of biodiversity around the world. 

So at the same time that we have more technology, more ability to communicate internationally, instantaneously, our ability to preserve our planet seems to be crashing.

We just, aren’t doing a good enough job at it.

But Sneezy also encapsulates the paradox of keeping large, charismatic megafauna – that’s big animals to you and me – in captivity. In 1986, Sneezy seriously injured a Tulsa Zoo employee. Cash-strapped and lacking appropriate facilities at the time, the zoo was struggling to deal with a bull elephant out of his environment. Sneezy’s job as a stud perhaps spared him a worse fate – he wasn’t euthanised – but it’s a powerful reminder that a zoo is not an elephant’s natural habitat.

So we’ve dealt with Sleepy, and Doc. And we’ve caught up with Dopey, Bashful and Sneezy. There are just two of our elephants left: Happy and Grumpy. And for them, once they were separated from the others, their days of being moved from pillar to post were over. In 1977, they were sold to the Bronx Zoo

We’ve tried, repeatedly, to speak to people working at Bronx Zoo, now or in the past. But nobody would talk on the record, for fear of a backlash. Elephant handlers told us that “unfortunately, participation in media stories often leads the animal activists to launch a harassment campaign against those animal professionals who dare to speak up and advocate for safe and lawful elephant exhibition.” And Bronx Zoo is keeping the lips of its employees firmly buttoned.

That said, we do know a lot about Happy’s life there. Once she and Grumpy moved to the city that never sleeps they quickly made their mark. One of their trainers in the early days was a man called Larry Joyner:

Happy is a more physical elephant than anything I’ve ever seen. Most people, when they train elephants, cats, horses or whatever, usually turn them loose and just watch them for hours. Then you can figure what trick to put on each elephant. Happy runs more, she moves more, she’s rougher. That’s why I put all the physical tricks on her: the hind-leg stand, the sit-up. Grumpy’s more intelligent. She learns well; she uses her head.

That was 1981. And so from the tropical forests of Thailand to the arid hills of California, from the flatlands of Florida to the concrete jungle surrounding Bronx Zoo, Happy and Grumpy, like the yin and yang of their respective names, lived together peacefully.

Bronx Zoo had a Noah’s Ark-style policy. Its elephants lived in pairs and Happy and Grumpy were a natural fit.

But, in 2002, they were put in an enclosure with two of the zoo’s other elephants: Maxine and Patty. As often happens with elephants in captivity, they didn’t get on.

Maxine and Patty charged at Grumpy and injured her badly. The four elephants were split up again into their pairs, but it was too late. In October 2002, Grumpy, Happy’s companion for 30 years and the last tie to her early life in Thailand, died.

Lucy Bates: Touching behaviour and investigating, as the elephant is dying, typically its family members will stay around. They’ll try and do what they can to sort of help it, if they can, they might try and help the elephant to stand up, they will do more touching and reassurance behaviour.

And then usually after the elephant has died, there’s intense interest. The family members will stay, other elephants that aren’t related will come and investigate the body, touch the body. But the way they do it is particularly compelling as well, because it’s not the way they investigate a stick or, you know, something they happen to find, a piece of rubbish.

When you watch it, you can’t help but see it as mourning behaviour. There is often… it’s nearly silent, whereas elephants typically are always sort of making rumbles to each other and there’s some sort of talking going on. When, when they’re in the presence of a dead elephant, it will be nearly silent and the movements are very slow and sort of deliberate and it just resembles mourning behaviour, but then there’s also a sort of what I am going to call a kind of a grief reaction. I think there is a trauma to the separation, usually. Mother elephants will often stand with the remains of a calf that has died for days, you know, very prolonged periods that is to the risk of their own health, often, if they haven’t even moved away to drink or to feed.

And just the demeanour of the elephants changes.

Despite her physicality, Happy is not an aggressive elephant: Grumpy was the more dominant personality in their relationship. And given what happened with Grumpy, the zoo couldn’t risk putting Happy back in with Maxine and Patty. So they found her a new mate, Sammy.

Happy and Sammy not only got on, it brought out a new side to Happy, a maternal side. Unfortunately, it was all too brief. In 2006, just four years after Grumpy’s death, Sammy fell victim to kidney disease.

Nowadays, this is the only way to see Happy. From a distance via the Wild Asia monorail that trundles through the Bronx zoo’s southern enclosures.

As you might be able to tell, Happy is alone, as she has been for 14 years now.

It’s not a happy sight. This isn’t how elephants live in the wild, and as experts such as Lucy Bates say, it is definitely not how they should live. If you care about how an elephant like Happy might be feeling – on her own, stripped of all the relationships she’d naturally have with other elephants – it’s a pretty desperate situation.

I do care. And this isn’t how I’d want Happy’s long journey to end.

But, back in the early years of this century, something was about to happen that would, over a decade later, sow the seeds of Happy’s upcoming courtroom drama, and unleash the possibility of significant change not only to Happy’s circumstances, but to the lives of all creatures, great and small.