Happy, the elephant you will never forget

Wednesday 14 October 2020

Part III Courtroom drama: Happy’s case goes to the top


The court is now in session. The case on trial is the matter of the Non Human Rights Project Inc on behalf of Happy versus James Breheny, director of Bronx Zoo.

Good morning, everybody.

This is Judge Tracey Bannister.

Welcome to Albion. For those of you who aren’t local, what a beautiful morning it is, isn’t it?

That’s how it started, on November 4th, 2018, in a village in upstate New York, between Rochester and Niagara Falls and just across Lake Ontario from Toronto. It soon moved, to a courtroom in the Bronx, presided over by Judge Alison Tuitt. And, two years later – next month – the legal circus will move again, this time to the grand stuccoed Court of Appeals on Madison Avenue.

So far we have explored Happy’s life, and learnt about elephant intelligence, empathy, and emotion, in order to understand how the elephant came to be in the room, specifically, the courtroom. It’s the punchline to the joke that never was.

This episode is about the battle for Happy’s future: what happened and why. And how, somewhere along the way, this long-suffering elephant, separated from her own kind, came to be pulled this way and that by two opposing factions, each claiming to have her best interests at heart.

But that’s not really what it’s all about. It’s not about zoos and circuses and whether an elephant should move from New York to Tennessee. Happy’s future is a proxy for bigger, deeper questions: how do we live with animals in our world, today? Every day, we learn more about the complexity of their brains and the sensitivity of their emotions. Given that, can we continue to treat them like, well, our vassals? Or, as Steven Wise, the self-professed lawyer for Happy, and his supporters believe, is now the time for a fundamental re-reckoning of the relationship between human and non-human animals?

Next month the two teams of lawyers will meet again, this time in New York’s appeals court (or possibly on Zoom). We know what they will say, their arguments will likely follow a path they have trodden before: in 13 hours of legal sparring, held over three days. This is what happened then. We have simplified it, cut out most of the finer legal jargon and used some of our own witnesses to explain their points.

We know some of the legal arguments. And we have explored some of the emotional ones too. But what, your honour, is the verdict?

And what is yours?

Day One in court. September last year. Steven Wise, from the Non Human Rights Project sets out his case…

Now, a person, you know, is not now and never has been and never will be synonymous with human being. 

It’s a point he’s had to deal with time and again. And he approaches it in two ways. Back in the 2018 court hearing, you can hear him tackle it like this…

We say, well, we been there before because at one time only white people could be persons; only men could be persons; only non-Chinese people could be persons; native-Americans could not be persons. We’ve been there before, we don’t need to go there again.

In the Bronx, he tacks in the opposite direction listing existing persons that are not human…

In New Zealand the national park has been declared to be a person. The Ganges River has been declared to be a person in India. Last year the Colombian Constitutional Court held that the part of the Amazon Rain Forest within the country of Colombia was a person.

Some corporations have even been deemed to be legal persons. And there was Cecilia in Argentina. She was the first chimpanzee to be granted personhood – and the world hasn’t exactly crumbled as a result.

This is all well-trodden ground for Steven Wise and the Non Human Rights Project. The majority of that September morning in the Bronx was spent going through his previous habeas corpus hearings. And explaining, why, in each instance, the judge got it wrong.

They started with Tommy. Tommy is a chimpanzee and, like Happy, he was living alone, in a cage, in a shed, on a used-car lot, when Steven tracked him down. (Unlike Happy, he did have a colour TV, as his then-owner liked to stress). Again, like Happy, Tommy had a past in showbiz; he supposedly played the role of Goliath in the 1987 film Project X (which, incidentally, was a pretty gross, sub-Animal House, drunken-party movie that rated a measly 28 per cent on Rotten Tomatoes)

At the time Tommy would have been on the studio lot, Happy would have been performing tricks at Bronx Zoo with Grumpy.

But Tommy’s habeas petition, and subsequent appeal, was summarily rejected. For the judge presiding over Tommy’s case, the main stumbling block was that Tommy couldn’t bear legal duties and responsibilities – he couldn’t pay taxes, obey the law, or pitch up for jury duty. And so he couldn’t be deemed a legal person.

Those, incidentally, are the three responsibilities of a US citizen – in legal terms, what makes them a person. It’s not about reading, writing or opposable thumbs. What makes you or me a person is taxation.

Steven gives this short shrift. His case to Justice Tuitt almost perfectly echoes the case he made in 2018…

It’s the only English speaking case in the history of the world has ever said that only entities who can bear duties can ever be persons. And as the first department even noted, well, there are millions of New Yorkers who cannot bear duties but yet they’re persons.

And so they understood the fragility and the weakness of the third department decision themselves. And they said what’s really important is the fact that the chimpanzee was not a human being…

Remember, if Steven can convince a court of Happy’s personhood then he can argue, using habeas corpus, that her detention – he calls it imprisonment – is illegal.

Judge Alison Tuitt digs deeper into what defines imprisonment for an elephant. It is one of the joys of this case: a legalese battle that frequently delves into philosophy, ethics, and society.

What does it mean to be a person? For one court it was the ability to bear rights and duties, for another simply being a human being. For Steven, neither was correct, and a large part of that was – in his argument – that Happy is an elephant.

The question as to whether or not Happy should have the right to liberty protected by a writ of habeas corpus, that is the question before you, and should depend upon the Court’s assessment, the intrinsic nature of elephant as a species.

Steven’s deliberations on that come later. But first, the reason why the whole day had been consumed by battling precedents. And that is where the Bronx’s first line of defence comes in:

The background of collateral estoppel was created to avoid repeated determinations, multiple bites at the apple once a matter has been determined, and that matter Proceedings has now been determined…

The Non Human Rights Project has, repeatedly, failed in its habeas corpus petitions on behalf of animals. For Steven, the ability to repeatedly use habeas law was one of its main appeals, as he told me…

There’s another reason why we choose habeas corpus which is that again, if I say that you run me down and I sue you, and I lose, and then I sue you again, you have an affirmative defence which is called a res judicata or claim preclusion. Which means basically looks like: you sued me, you lost. You only get one shot at it, the end. And then the judge throws the case out. Res judicata does not apply to habeas corpus cases, so you can bring them again and again, and again, and again.

Steven argues that his previous clients were chimpanzees. Happy is a new client; Happy is an elephant.

So how do you prove that an elephant – specifically Happy – should be a legal person? For Steve, it comes down to autonomy. It is an idea that gets mentioned a lot in court.

Here’s Lucy Bates, the expert on elephant cognition, who filed an accompanying affidavit in support of Wise’s case:

Sam: How do you determine an elephant’s autonomy?

Lucy: I think we have to approach that in the same way as we would determine another human’s autonomy. We can realistically speaking or scientifically speaking, we can only know our own mind. I know that I am an autonomous being, I am making my own decisions. I don’t know what is going on in your mind.

I cannot possibly ever know truly what is going on in your mind, but I can look at you. I can see that you’re behaving in the same way that I do, you talk in the same way that I do. You react to certain things in the same way that I do. So it’s safe for me to assume that your brain must be working in the same way as my brain.

So when it comes to humans, we’re very happy to sort of apply that argument by analogy that, you know, because we are the same because we look the same way, we’re probably the same inside as well. And from my perspective, we can also apply that to animals. So animals that are, we can’t look inside their minds and know what they’re thinking or how they’re thinking without language, but by looking at their behaviour and seeing if they react to certain situations in the same way that we do… for me, it is acceptable to assume that they’re basing those reactions on the similar kind of mental processes that we base them on.

So elephants think for themselves – like we do. They make plans – like we do.

Wise relies on the research of experts like Lucy to flesh out what it means to be an elephant – in the wild.

But Happy is a captive elephant. She left her forest home when she was tiny. She never had the chance to learn what it was to be a wild elephant. And captive elephants and wild ones are different, well, animals.

Back in the courtroom, the battle over Happy’s future continues. The argument moves on.

Elephants have evolved to move. Holding them captive and confined prevents them from engaging in normal autonomous behaviour.

There’s that word autonomous again. But Steve is talking about the fundamental right to bodily liberty here. And it’s worth, here, winding back to how the NHRP chose Happy as a client. Their previous clients, Tommy, Hercules and Leo had been chimpanzees. So, why an elephant?

Well, because they’re so extraordinarily cognitively complex and there are experts who can testify to that.

And they’re autonomous. And we also thought that people kind of love elephants a lot. They love elephants. And so we think more than chimpanzees; chimpanzees, I think are a little too close to us, but elephants have all of the cognition of chimpanzees, but they don’t look like us at all.

So we’ve decided that we, for all these reasons that we would try elephants and we had been looking at the Bronx zoo because they were essentially being kept alone and they’re immensely social animals, and they’d been there for 40 years. 

The Sanctuary would offer Happy the space to roam across thousands of acres, in the company of others of her kind. We have heard about how elephants are social animals, how they cooperate and care for each other. However, the Wildlife Conservation Society – the Bronx Zoo – disagrees on two particularly interesting counts. One is something we have already heard: Happy does not get on with other elephants.

As they said in court, she becomes “very distressed during short moves from one area of Bronx Zoo to the other”.

This isn’t just an excuse. Moving her now could have tragic consequences. Listen to Grey Stafford, who started his career training orcas – killer whales – at Sea World:

Now in Happy’s situation, what I would also say is Happy may not have an elephant family, but she has a family, her keepers, her caretakers, that home that she’s known for decades, that is her life. I do not think it’s fair for outsiders, people who are not familiar with that individual animal… they may know the species in Africa or Asia…

I think he’s taking a pop here at Joyce and Lucy.

…with those people taking care of her every single day. That’s who her family is today.

And to simply remove her from that, and now stick her on a 500 acre ranch without her family, away from what she’s known as her home, I’m not sure that that’s in her best welfare interest. A lot of groups and a lot of lawyers assume that’s true, but I’m not sure that is true.

I’ve seen animals put into new situations, new learning situations without preparing them for it, and it’s devastating to their welfare and their health and their behaviour. And it’s a sad thing to see. So there’s an awful lot of presumption on the part of the NHRP and others to presume to know that they know far more what’s in her best interest than the people that have cared for her every single day for decades.

You don’t have to stop at Happy. Investigate the story of Keiko and what happened to Keiko. 

Keiko is a cautionary tale. About the perils of freeing animals. It was almost two decades ago now, but the story is raw for many in the community…

What happened to Keiko and his release and abandonment in the ocean, it was a crime. And it should make every animal welfare animal rights person pissed because whether you’re pro zoo or not, it should be devastating to everyone who cares about animals because that animal died alone. He was abandoned by the only family he knew, which were human beings.

Keiko was an orca, a killer whale. Social, intelligent and potentially deadly, orcas share many traits with elephants.

And Keiko, well, you may know Keiko…

[Clip from the film Free Willy]

But there was no Hollywood happy ending for him in real life. And for Grey Stafford and others in the community, it emphasises the tragic repercussions next month’s court case could have…

As soon as he left, and he didn’t go find a pod to live with, he went straight, made a beeline towards Europe, and went to what he knew, which were boats and people, and he solicited attention and allowed complete strangers to hop on his back and do the kinds of things he knew how to do and experience because that’s what he knew.

That’s who his family was and reminded him of the family he grew up with. And that wasn’t good enough for these same people that were the same mindset you’re talking about. They had to push the envelope and it cost him his life.

Keiko died of pneumonia, alone.

The last thing anyone wants – we assume – is for the same to happen to Happy.

And the zoo’s lawyers brought up another, compelling, legal argument:

Habeas law is about freeing the plaintiff – in this case, Happy – from unlawful imprisonment. But, obviously you can’t just turn Happy loose in New York City. Imagine…

The NHRP wants her to go to the elephant sanctuary. But that is not bodily freedom.

That, in the worlds of the zoo’s lawyers say, is merely seeking “to change the conditions of Happy’s confinement and does not seek her immediate release from confinement.”

And – this is the irony – it would be a human – a human animal if you wish – who would be determining where she would go.

Here’s Grey again, and as you can tell, he’s really, really riled about it:

And so now if that were to happen, if their plans were to come to fruition someday, now you have a human being that’s been appointed by the court, perhaps nominated by Non Human Rights Project to say, “I think this is what’s in the best interest of that animal”. 

And they have no idea what that animal is in and they have no idea what that individual animal needs or wants or has experienced in its lifetime. To me, that is, it is ridiculous and anything but good welfare for that individual. 

It’s offensive. What the Non Human Rights Project is proposing, and wasting millions of dollars and a lot of lawyer time doing, which diverts us from the real problems of the world, is offensive on many, many levels.

I see the keepers and the trainers out there and subzero temperatures and a hundred degree plus days caring for their animals. And these are people that are well-educated today, many of them have associate or four year degrees or more, they’re doing it because they love what they do and the animals they care for; not because they’re there to make a lot of money. And so for these carpetbaggers to come in and to presume to know everything there is to know about these individual animals, it’s just scandalous now.

Back in the courtroom for the third and final time.

This court is now the 24th state supreme court justice who’s the 24th judge to hear these cases. At some point, we should guess the petitioner ought to be bound by the prior precedent.

These are the words of Kenneth Manning, the zoo’s lawyer. And it is something he bangs home, time and again, over days one and three of the hearing.

Whenever Steven Wise talks about James Somerset, or Happy’s autonomy, Manning comes back to precedent.

It’s a reminder that this case is not about how happy Happy is: it’s about the law. And the law matters because, if Wise wins, a new precedent is set. And then all bets are off, for, as the Bronx Zoo lawyers say, this isn’t really just about Happy as an individual, nor about elephants as a species. It is about all animals. And it’s about how we farm, and eat and live with those animals. Whatever Steven says:

Then we file a lawsuit on behalf of Patty. And then we actually work our way through every elephant in New York. 

He’s being a bit arch here. Although he will not admit it publicly, he didn’t stop doing paid doggie custody cases to spend years at a time arguing about single elephants – and losing.

There’s a reason why activists focus their attention here in the United States and in other prominent countries. It’s because they know they will get the attention that they want…

This is Grey Stafford again, and he’s still angry.

It’s about the attention. I mean, I live in United States, we have a reality TV star president, right? 

New York and Los Angeles and Washington in DC, why? It’s because there’s a huge media presence there and it garners the kind of attention and outrage and outlandishness that some organisations go for. I don’t have time for some of that because my goal is to preserve the planet, not raise money for my off-shore retirement accounts for this nonprofit or that.

We live in a very, very divisive society, we have a lot of people saying very nasty things about these organisations sometimes. And while they may be a small subset of the human population, they have large megaphones, they’ve got cell phones, they got selfies, they’ve got Facebook, they’ve got all kinds of technology to help echo what in the past was kind of like an evening complaint by five or six disgruntled people, they got their little hit on the evening news and they were gone. Well, now lies live on in perpetuity, and these people are really good at making money at that. 

Steve doesn’t dispute the publicity angle – in fact he agrees with it:

When we first filed our lawsuits as lawyers, we thought all the action was in the courts. And then it turned out that the media was really, really interested in what we were doing. And then we think that’s kind of a loop. And so the media get interested and then the judges get interested, more interested in, the media gets more interested.

 And so one of the reasons that we began litigating in New York city is that it’s the one of the media capitals of the world.

And also the Bronx zoo is this kind of sacred cow in New York. And so we wanted to go after them because we thought that the media would both be sympathetic to Happy, and, you know, it’s like suing your mother if you’re suing the Bronx Zoo.

Steven Wise really believes he can and will win… eventually. In his first case, for Tommy, the habeas corpus petition was rejected outright. But now he has three-day trials, and appeals hearings. He is chipping away at legal stonework and he’s only ever one judgement away from success.

But time and again, the zoo’s lawyers bring it back to his past failures, the previous determinations of the law. And it is wearing thin. Almost halfway through the third day, Manning intervenes…

And now on the third day of argument on the legal petition, we are basically going through an evidentiary analysis with opinions of counsel sprinkled throughout.

A steam of frustration fills the courtroom. But the arguments have been made. The Non Human Rights Project believes that elephants generally display human-like autonomy, intelligence, compassion and flexibility, and, further, that Happy as one of only two elephants to pass the mirror test, has shown remarkable self-awareness, akin to that of a human child.

We have heard the stories of how Happy’s captive home is so different to her natural one, and how, alone for 14 years, as you can see afar from a monorail, she lacks companionship.

For its part, the Zoo has argued Happy is cared for and looked after well by people who know her needs. But that the law is clear: Happy – like all animals – as has been ruled time and again, well, Happy is not a person. She is a remarkable elephant, but she is not a person. And moving her from one zoo to another does not conform with habeas law – quite apart from risking her health and welfare.

Both sides have made compelling emotional, moral and legal points.

And so, to the verdict…

Judge Tuitt has listened, carefully. She’s probed and considered and now, on February 19th this year, just before the pandemic flooded our consciousness, she delivers her opinion.

“Regrettably, in the instant matter, this court is bound by the legal precedent set by the Appellate Division when it found that animals were not “persons” entitled to rights and protections afforded by the writ of habeas corpus…”

She goes on to say: “This court is extremely sympathetic to Happy’s plight and the NHRP’s mission on her behalf. It recognises that Happy is an intelligent, autonomous being with advanced analytical abilities akin to human beings.. And that she “should be treated with respect and dignity, and may be entitled to liberty.”

In legal terms Wise has lost. Again. But he came out of court buoyant, and immediately announced his intention to appeal.

And he knows that where it matters most is not in a court of law, but in the court of public opinion. Because it is not the court that will decide the future course of these bigger questions. That will be answered in legislation guided, of course, by the public.

I’ve spent the last few months embedded in Happy’s story and its ramifications, hopping from one side of the proverbial fence to the other, swayed and moved by the stories that all of our witnesses have told. For what it’s worth, here’s what I think:

I’ve always loved elephants, but in the way that I love pizza and David Bowie: instinctively and, in a sense, unthinkingly. I grew up partly in Africa and have been privileged to have seen hundreds, maybe even a thousand elephants in the wild. I’ve never touched an elephant, but I’ve been charged by one; and I’ve sat at sunset and marvelled as a family of elephants played at a waterhole. From close up or far away, elephants are awe-inspiring.

But, before I started getting acquainted with Happy – and to my great regret, I’ve not had a chance to meet her in person – I didn’t really think about what it must be like to be an elephant. I still don’t know – but thanks to the insights of people like Joyce and Lucy and Erin and Josh, people who’ve spent a great part of their lives with elephants, I feel a little closer to understanding them.

Elephants belong in the wild, living like elephants. We humans are doing our best to make that difficult for them. We’re stealing their lands as well as their lives. We should try to make amends, and, where we can’t, we should try to find better ways to live alongside them. That’s easier said than done, but it’s also where zoos can help: the money they raise can be used to protect elephants and conserve their habitats, to fund research programmes looking into how people can live with elephants, safely and profitably.

As for captive elephants… Well, ideally, they do not belong in city zoos – and categorically not in circuses – however much their handlers and trainers may care for them. But there are some zoos and wildlife parks – like Erin’s zoo in North Carolina, or the Tennessee elephant sanctuary – which have more space, as well as the expertise to care for their existing elephants, living in multi-generational herds. And, yes, if we don’t sort out the slaughter and habitat destruction of wild elephants, to keep the gene pools going through breeding programmes.

On to Happy’s case. This is complicated, as, really, it’s not about Happy and her life as much as it is about the bigger picture – about what rights animals should have. Protect the Harvest, a lobby group of farmers and ranchers, which filed an amicus brief in support of Bronx Zoo did not pull its punches:

It knows it needs but one win for the floodgates to open. If this court or any court finds that Happy or any other non-human animal is entitled to habeas corpus rights, the NHRP will redouble its efforts to create a new common law, one that would allow virtually all animals to be freed, thereby irrevocably upsetting the social balance.

While NHRP attempts to focus the court’s attention solely on Happy, the court should not be fooled. If this court opens the door to habeas corpus for one elephant, it will not easily be closed.

I think that is a bit overblown. But both sides have retreated to their respective corners from which to fling mud and vitriol at each other without recognising the big common ground: they both really do care about animals. And, let’s face it, this battle is not helping Happy.

The Non-Human Rights Project has been very open with us. The Bronx Zoo, on the other hand, flatly refused to speak to us, which was unhelpful, to them as well as to us. But I did hear, from sources who were not prepared to talk on the record, that, as a result of the publicity that has swelled around Happy’s case and the abuse that has been hurled at the zoo for keeping Happy alone, she is spending less time outside, where she can be seen to be alone, and more confined to her enclosure, alone.

Wise chose Happy as a client because she would get this sort of publicity for his cause. In a sense, then, Happy’s taking one for the team. But even with the added restrictions to her life caused by this case, she is by no means the worst-off elephant in America. Her health is monitored closely, she has vets, nutritionists and carers. WCS, which owns and runs Bronx Zoo, is one of the biggest wildlife charities in the world. Last year it donated over $120 million to conserving wildlife in Africa, Asia and the Americas. For the past two years, a not-inconsiderable chunk of that money, as well as time, will, instead, have been diverted into legal fees.

While I would love to see Happy living out her days in the sanctuary, joined there by Dopey, Bashful and Sneezy, in what would be the Disney ending their names deserve, I can appreciate the zoo’s caution. They don’t want to take the risk with her safety, but, maybe more than that, with the fallout that her being declared a legal person could have on zoos around the world.

This has got to change. We are animals, too. And the more we learn about the intelligence, and the complex emotional life of other species, the greater the imperative for that change. We know elephants have empathy – that’s clear from the consideration they show others, from how they mourn their dead. It’s time for us to use our empathy and to imagine what it must be like to be an elephant. They are not things. They deserve rights. But the same rights as humans? How does that work? Where do we draw the line between a human, an elephant and, say a chicken? Or a river, or a tree?

Joyce Poole has drawn up The Elephant Charter. Its guiding principles spell out how elephants should live, in the wild and in captivity. It doesn’t solve the problems that elephants face now, but it’s a good start. Anyone and everyone who thinks they care about elephants should read it, and think about it.

I’ve realised in this process – in choosing to focus on Happy, we’re doing what we always do in anthropomorphising animals and trying to accord human rights – that of liberty – to animals. The more you understand animals, the more you understand both how similar and different they are – to each other and to us. And so they can’t have the same rights as humans. But that doesn’t mean they should have none.

In this sense, regardless of the verdict next month, Happy has made her case.