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From the file

Happy the elephant | A judge will decide whether Happy is unlawfully detained and can leave her zoo for an elephant sanctuary. It is a milestone case – not least for our relationship with animals.

The case of Happy the elephant

Thursday 15 October 2020

Happy the elephant has a lawyer – and a shot at giving animals rights that only humans enjoy at the moment


Hop aboard the Wild Asia Monorail at Bronx Zoo, and you will soon reach the elephant exhibit – separated by a wall from the rumbling Bronx River Parkway. The sing-song voice of the guide will introduce you to Happy, a 49-year-old Asian elephant. She might be paddling in her pool, picking idly at grass or, on a hot day, shading under the trees, close enough to the open carriage to be able to make out the freckles on the back of her softly flapping ears. If you are lucky, she might lift her head, allowing you to catch a glimpse of what her life has held over the past half century.

In 1972, seven baby elephants were captured from the forests in Thailand, packed into crates and loaded onto a ship bound for America. They had been sold for $800 each to the Lion Country Safari Park in the arid hills of southern California, which named them after Disney’s seven dwarfs: Sleepy, Sneezy, Dopey, Doc, Bashful, Grumpy and Happy. Sleepy died soon after arriving and the rest were trucked across the country to another Lion Country park in Loxahatchee, Florida.

Baby elephants en route to the Bronx Zoo

Five years later, the remaining elephants were split up. Sneezy went to Tulsa Zoo, which holds a party for his birthday every year. Doc ended up at Bowmanville Zoo in Ontario, where he was euthanised in 2008 after breaking his leg while doing a hind-leg walk. Bashful and Dopey were bought by the Carden Travelling Circus, based in Missouri, from where they still travel the country, performing. Happy and Grumpy were bought by the Bronx Zoo.

There they were trained to give children rides, to perform tricks, and, once a year, to pit their weight against a team of jocks in the annual tug-of-war contest. Only once, in 1982, was the elephant beaten – by the Fordham Rams football team. Happy’s trainer at the time said: “Happy is a more physical elephant than any I’ve ever seen… Most people, when they train elephants, cats, horses or whatever, usually turn them loose and just watch them… 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.”

When the public mood around what wasn’t acceptable to do with captive animals changed, Happy and Grumpy reverted to a life on the edge of the monorail, to be viewed by visitors between May and October.

But, in 2002, Grumpy was attacked by the zoo’s two other elephants, Maxine and Patty. Grumpy’s injuries were so severe she had to be put down. Happy had lost her companion of 30 years. She was separated from Maxine and Patty and given another flatmate, a younger female named Sammie – who, in turn, was euthanised in 2006, after suffering kidney failure. Since then, Happy has lived alone.

Patty, an Asian elephant in the Bronx Zoo

Next month, two teams of lawyers will face each other across a Bronx courtroom (or maybe on Zoom). They have been trading insults for two years. On one side, Steven Wise from the Non-human Rights Project (NhRP), a charity dedicated to securing “fundamental rights for non-human animals”; on the other, lawyers representing Bronx Zoological Gardens, one of America’s most venerable zoos. At stake is Happy’s future.

Steven Wise calls himself Happy’s lawyer. Since adopting her as a client in 2018, he has filed habeas corpus writs against Jim Breheny, the zoo’s director. Wise aims to wield the law to secure Happy’s release from “solitary confinement” by convincing the judge of her legal “personhood” – that she is an intelligent, empathetic being with attendant rights.

Breheny’s defence rests on hundreds of years of legal precedent, during which time animals have been regarded as legal “objects”, with no rights of their own. He argues that the NhRP has exploited Happy and the name of the Bronx Zoo “to further their misguided philosophical agenda and fund-raise for their cause.” Further, that Wise and his team are wasting court time and, by using the Great Writ of Habeas Corpus on animals, they “demean all the people who have sought such relief.” Happy’s welfare is best protected at the zoo, he says, and moving her now could place her life in danger.

At the last hearing, in February 2020, Judge Alison Tuitt teetered on the edge of granting Happy her freedom, finding that she is “an extraordinary animal with complex cognitive abilities, an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.” Tuitt was prevented from taking that step by legal precedent. This summer the NhRP filed an appeal.

HOHENWALD, TN – MARCH 30: Tang plays in a mud puddle near fellow elephant Zula at The The Elephant Sanctuary in Hohenwald, Tennessee where Happy could move if she wins her court case

If they win, Happy will be moved to the Elephant Sanctuary in Tennessee to live out her days on a 2,700-acre reserve, in the company of other elephants. But it is not just her future happiness at stake: if the NhRP wins, the law will start to be rewritten. It could have implications for all areas of life: what we eat; how we hunt, fish and farm; whether we can continue to keep intelligent creatures in cages, laboratories or kennels. It will hold up a mirror to the history of civilisation and start to define how we will live in the decades and centuries ahead.

There have been elephants in captivity for around 4,000 years – used by us in logging, at war and for our entertainment. But it is only relatively recently that scientists have begun to study them, largely by observing their behaviour in the wild. We have learnt that they live in matriarchal family groups, with the young tagging along beside their mothers until the age of around ten – at least eight years older than Happy was when she set out on her journey across continents. We know that they can recognise other elephants, as well as individual humans; that they communicate using hundreds of discrete rumbles, bellows and roars; that they can solve problems, help one another, and mourn their dead, often standing guard over their bodies, or covering them with dirt.

In the hot summer of 2005 Happy taught us something else. Joshua Plotnik, a graduate student in animal behaviour, sat on the elephant barn roof at Bronx Zoo with Diana Reiss, an expert in dolphin cognition. A few days earlier, they had placed a large mirror in the enclosure that Happy then shared with Patty and Maxine. They watched as the elephants explored it with their trunks, trying to look over and behind it. At first, Happy hung back. The mirror was taken away and then returned, a few days later, after a white cross had been painted on one side of each elephant’s face, and an invisible mark on the other.

Plotnik and Reiss watched as the elephants approached the mirror again. Maxine and Patty appeared not to notice their facial adornment. But when Happy looked in the mirror, she swung her trunk repeatedly, touching the cross carefully and precisely. “Our hearts were pumping; we were so excited and happy.” Plotnik said. Happy had become the first elephant to pass the Mirror Self Recognition test, devised in 1970 by Gordon Gallup, an American psychologist, and regarded as an indicator of self-awareness. Individual animals from several species have passed the test: dolphins, killer whales, bonobos, magpies, orangutans and humans – aged 18 months and older. With Happy, elephants were added to the list.

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After Sammie’s death, Breheny, a Bronx-Zoo lifer, announced that the zoo would end its captive elephant programme when one or more of its elephants died. Twelve years later, Maxine passed away, leaving Happy and Patty alone in their separate enclosures.

According to Joyce Poole, who’s spent 40 years studying elephants in Kenya, seeing an elephant in captivity is nothing like seeing one in the wild: “It’s not an elephant in terms of its behaviour, or social structure – in terms of its very being.”

As she wrote in her affidavit in support of the NhRP’s case:

“Scientific knowledge about elephant intelligence has been increasing rapidly in the past decade; what we currently know is only a tiny fraction of what elephant brains are likely capable of, and yet more amazing abilities are still likely to be discovered. But even based on what we know at this stage…. both African and Asian elephants share many key traits of autonomy with humans and, like humans, are autonomous beings.”

Elephant habitat is decreasing at a thundering rate. In every country in which they once roamed, they’re being driven behind fences, off farmland and out of the villages that have sprung up on what were open plains. Rivers have been diverted, waterholes are drying up. The trees and grasses which provided fodder and shelter are being cut down. Poachers are slaughtering whole herds, animal traders are capturing hundreds of elephants at a time, using helicopters to herd them into open spaces, where they are darted and captured – to be exported to zoos, or trained for tourism; there are elephant-back safaris in Africa and Thailand – where Happy was born.

How we treat domesticated animals has moved on in stag leaps over the last decades. In most countries, there are laws against inflicting cruelty on animals. Dog- and cock-fighting is largely illegal. In the UK, it’s no longer legal to hunt a fox using hounds. The European Union banned battery chickens in 2012. At the end of last year, President Trump signed the “Preventing Animal Cruelty and Torture Act”, which made intentional acts of cruelty to animals federal crimes carrying penalties of up to seven years in prison.

Steven Wise knows the fine print of these laws. He started his career as a personal injury lawyer, but moved into animal protection law after reading Peter Singer’s book, “Animal Liberation”. Since then, he’s saved numerous animals from being needlessly put down. Thirty years ago, he realised that he was just playing in a corner of the animal-welfare arena. For every animal he helped, by grinding through the courts, countless others would continue to suffer. What was needed was fundamental change; what animals needed were rights.

One of the final elephant shows at the Ringling Bros. and Barnum & Bailey circus

There have been animal rights campaigners since Victorian times, but the modern movement took off in the 1970s, driven by a group of moral philosophers from the University of Oxford. Towards the end of the century, their ideas were taken up by activists, who used dramatic stunts to raise awareness – breaking into laboratories that used animals in research, cutting fences and papering the media with images of blood-stained animal corpses. Some went further – threatening to contaminate food, sending letter bombs and detonating incendiary devices under cars belonging to scientists associated with animal experimentation. The Animal Liberation Front, and its allies, were declared to be terrorist organisations on both sides of the Atlantic.

Steven Wise sought a different approach. He hit upon the idea of using the Writ of Habeas Corpus – literally “you may have the body” – as a way of reframing how we regard animals. Habeas corpus gives any person who believes themselves to be unlawfully imprisoned – or their representative – the right to argue for their freedom. It was first used in England before the Magna Carta, and enshrined in English common law in 1679.

In America, the right to file a habeas writ is protected by the Constitution; these days it is most-often used by prisoners seeking release. But it was conceived for human use. Until Wise started peppering the courts with habeas petitions on behalf of animals, the idea of using it in this way was inconceivable. To most people, it still is. In order for an animal to petition for habeas relief, the courts have first to be convinced of its legal “personhood”. Once one animal is declared a “person” by an American court, all bets are off.

The 2011 Pachyderm Parade in Washington, D.C.

Tommy, a retired actor kept alone in a cage inside a lock-up in upstate New York, was the NhRP’s first client. It wasn’t Tommy’s situation that made him exceptional. Tommy’s living conditions were less-horrific than those of thousands of animals kept in laboratories around the country and used in experiments: Tommy had a colour TV. But his welfare wasn’t the point for Wise; Tommy’s role was to be a trailblazer, an everyman chimp, charismatic and media-friendly, who would test the law – for Wise and for the legions of animals with no lawyer of their own.

It is the role of judges in countries run largely under English common law to make the law through the cases they try. In coming to a verdict, they look for precedent. It’s only where there is no precedent – or where the sitting judge is unusually brave – that they can step outside the furrow of what has always been. Wise hoped to find such a judge in the liberal state of New York.

He failed. Tommy’s habeas petition was submitted on the grounds that he was an intelligent, autonomous being demonstrating much of the same thought patterns and behaviour as a human – and should be treated similarly by the law. The petition was denied on the grounds that, along with legal rights, a “person” should have to shoulder legal responsibilities: to pay taxes, obey the law and pitch up for jury duty.

Wise wasn’t impressed. He pointed out that third-trimester foetuses are legal “persons”, as are people in a permanent vegetative state. Some corporations have been deemed to be “persons”. He compared Tommy’s bid for personhood to that of James Somerset, an enslaved man originally from Africa who, after 22 years of enslavement to Charles Stewart in Massachusetts, tried to escape while in England. As Somerset had no rights – like Tommy and Happy, he was a legal “thing” – a band of English reformers filed a habeas petition on his behalf. Lord Mansfield, the Chief Justice, ruled in Somerset’s favour. It was 1772. James Somerset was freed and the first foundation stone of slavery was pulled away.

Standing Bear, Native American Ponca Chief

The status quo over who is a legal person is continually shifting. In 1857, the United States Supreme Court stated that all Black people “had no rights which the white man was bound to respect”. Two decades later, a US Attorney attempted to argue that Ponca Standing Bear was not a “person” because he was a Native American. Until 2011, gay, lesbian and bisexual people were excluded from serving in the US military. Across the world, at different times, women, children, trans people and indigenous people have lacked rights.

The next civil-rights battle, Wise believes, will be fought for non-human animals.

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Unbeknownst to Happy, the NhRP filed its first habeas petition on her behalf in February, 2018. Wise and his colleagues had been shopping around for a new, high-profile “client” since the courts had ruled against Tommy, and then Hercules and Leo, two chimps used in research. As Wise told me “we had run out of chimps.”

Happy was a natural fit for the NhRP. She was based at Bronx Zoo, close to the media heartland of New York, she had proved her intelligence by passing the MSR, and, well, her name was Happy.

The Bronx Zoo is owned by the Wildlife Conservation Society (WCS), one of the largest animal NGOs in the world. Last year, it donated over $120m to conservation causes. Although the zoo has had its share of controversy – in 1906, it exhibited a kidnapped Congolese “pygmy” named Ota Benga in the Monkey House, something it has since described as “unconscionable” – it remains one of America’s most august zoos. As such, it was a perfect adversary for Wise, sure to attract the sort of media coverage he sought, and the public support he needed.

By the time Wise learned of her, Happy had been living alone for 12 years, separated by a tall fence from Patty. According to Dr Lucy Bate, an expert in animal cognition, solitude is inimical to such a social animal; Joyce Poole cites the lack of space and inability to make the decisions that wild elephants make every day: where to go and with whom, what to eat and how to play.

But Happy, and the many elephants who live in zoos around the world, cannot be returned to the wild. She never learnt how to be a free elephant.

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The initial petition convinced the court that Bronx Zoo had a case to answer; in November, Happy picked up another first, when she became the first elephant to have been issued a habeas Order.

For the Order to be granted, Wise and his team had to convince the judge of her personhood. They set about gathering affidavits – from elephant experts, psychologists, lawyers and philosophers. The central argument was that, as an autonomous being, Happy should be accorded her bodily freedom. The NhRP cranked up its media campaign: from Fox News to the Comedy Channel, Wise spent almost as much time on television as in his home-office in Florida.

The Bronx Zoo fought back. Breheny filed an affidavit stressing why Happy’s welfare was best protected at the zoo, whose keepers, vets and nutritionists knew her, cared for her and had her best interests at heart. An amicus brief submitted by Protect the Harvest, a lobby group of farmers and ranchers, warned that if the NhRP succeeded the “social balance” could be “irrevocably upset”, and “if the court opens the door to habeas corpus for an elephant, it will not easily be closed.”

Limba walks through a corn field beside the Bowmanville Zoo

It was as if both sides had set their battle lines, bristling for the fight. The NhRP sees themselves as passionate defenders of animals; the zoo community regards them as troublesome radicals intent on destroying not only zoos, but our freedom to live with, farm and eat animals. But the differences between the two are not as sharp as their attorneys might have us believe. Zoos are not just there for entertainment; long gone are the days when elephants were dressed up in coloured ruffs – in the accredited zoos, anyway – and made to pit their weight against fifteen men, although Dopey and Bashful still play for gasps as the Carden Circus.

Modern zoos work alongside scientists. For every Joyce Poole, watching elephants in the wild, there is a Joshua Plotnik building out-sized mirrors with which to test their self-awareness. Arguably, Wise might not even have adopted Happy as a client had she not passed the MSR test, in her enclosure at Bronx Zoo, courtesy of a grant from the WCS.

Endangered animals are protected from predators – human and animal – in zoos and wildlife parks, which oversee breeding projects, seeking to return the products of this captive husbandry to the wild, using funds raised by zoos and channeled through organisations such as the WCS. The passion of many animal-lovers might have been stimulated by childhood visits to the zoo.

In December, 2018, after winning the first round of the legal battle, Bronx Zoo issued a press release:

“Today’s ruling is the latest in a long series of losses for this group as they desperately seek ways to use the courts to advance their agenda….

“The NRP has chosen to exploit Happy and capitalise on the Bronx Zoo name to advance its failed political agenda. They continue to waste court resources to promote their radical philosophical view of ‘personhood’…

“As we work through this process initiated by the NRP, we are forced to defend ourselves against a group that doesn’t know us or the animal in question, who has absolutely no legal standing, and is demanding to take control over the life and future of an elephant that we have known and cared for over 40 years.”

The lawyers lined up in court towards the end of 2019. Over three days of argument, each side put across its case. Judge Alison Tuitt listened as the debate ranged from law to philosophy and back to animal intelligence. Three miles away, Happy spent the time much as she had the last 40 years, standing in her small enclosure, occasionally flicking dirt from the ground over her back.

On 19 February 2020, as the people of Wuhan were locked down, Judge Tuitt issued her decision, “regretfully” denying Happy’s habeas corpus relief. Both sides claimed victory while accusing the other of mistreating Happy. The Non-human Rights Project announced its intention to appeal.

And then the world tilted. Bronx Zoo was forced to lock its gates – but not before COVID slunk in. Five tigers and three lions tested positive.

It reopened in June with new protocols: visitors have to book slots and wear masks. It has the fundraising machine of WCS behind it, but, around the world, zoos have been forced to let go of staff; some have announced they will close permanently.

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Happy in the Bronx Zoo

At this moment, lawyers on both sides are preparing for oral arguments. Steven Wise is hopeful. But a habeas expert I spoke to is not convinced the NhRP has made its case. “I’m not sure they want to win,” he said. “They spent too much time talking about slavery and too little about the law. Habeas corpus is about freeing someone from unlawful detention. Happy would just be exchanging one form of confinement for another.”

For Wise, perhaps, it is not the appeals court that matters so much as the court of public opinion. He seems to be winning there – Alexandria Ocasio-Cortez tweeted her support for Happy – and, in a democracy, that matters. The thin end of the wedge is inching under the constitutional door

For Happy, even if the appellate court declares her a person, grants the habeas writ and orders her “release” – into the green hills of Tennessee – it will still be at the behest of humans. Equal rights for animals are some way off. But Happy has succeeded in raising the issue.

As we slip into autumn, and the legal wheels in her case crank up again, her life is largely unchanged – certainly not for the better. I was unable to fly to New York to meet Happy, but I was told by a source close to her keepers that, these days, she is less-often outside in her enclosure beside the Wild Asia monorail. As a result of the publicity that has swelled around her case, and the abuse hurled at the zoo for keeping her alone, she is spending most of her time locked down in her barn, out of sight but still alone.

Photographs Getty Images & Julie Larsen Maher/Wildlife Conservation Society

Next in this file

We share a lot with animals, but does that mean they should share human-like rights? Sharon Redrobe has studied animals for years, and as chief executive of Twycross Zoo she is now responsible for their care in captivity. She argues that we need to treat them better as animals, not as if they were people.

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