By Nancy E. Halpern, D.V.M. , Fox Rothschild, LLP Animal Law
In a long-awaited decision about whether Happy the Elephant could be designated a person for the purposes of a writ of habeas corpus, the Court of Appeals of the State of New York has spoken. In a word—no. Specifically, the Court held that “[b]ecause 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.” In re Nonhuman Rights Project, Inc. v. Breheny, No. 52 (N.Y. June 14, 2022) (emphasis in original) (available at https://www.nycourts.gov/ctapps/Decisions/2022/Jun22/52opn22-Decision.pdf.)
This holding addresses at least two threshold concerns in this case—whether Happy is a “person” and whether she is being held illegally. Since the answer is “no” and “no,” she does not qualify for the requested remedy.
And fundamentally, the requested remedy would not address the alleged wrongs described in the dissents, that if Happy were to be relocated to a different facility she would not be “caged and displayed” (Wilson, J. Op at 70) but could instead behave like non-captive elephants, “a wild highly social species whose bodies and minds are accustomed to traversing long distances to connect with others and to find food” (Id. at 61).
First, whether housed at the Bronx Zoo or the allegedly preferred Performing Animal Welfare Society (“PAWS”), Happy would be displayed to people visiting the facility for a fee. Like the Bronx Zoo, PAWS is licensed by USDA, pursuant to the the Animal Welfare Act (AWA), as an “exhibitor” defined as “any person (public or private) exhibiting any animals . . . whether operated for profit or not . . . ”. Neither facility would characterize their mission as displaying their animals “only to entertain and satisfy human curiosity” (Rivera, J. Op at 21).
Nor would Happy be able to engage in species-specific behavior that would be quantifiably different than her behavior at the Bronx Zoo, where she shares fence-line contact with another elephant, and where the care provided to her exceeds the requirements to provide humane care pursuant to all applicable laws. There are only three other Asian elephants at PAWS, where at least for the near term she could only share fence-line contact with those elephants, assuming they currently share enclosures or contact.
So, despite Judge Wilson’s opinion that this case is about Happy’s ability to challenge [allegedly] unjust confinements (Wilson, J. Op at 16), it is not—this case was intended to ascribe “personhood” status to an elephant.
If Happy could successfully challenge the conditions of her confinement, despite those conditions being in compliance with all relevant laws, then any other animals regulated under the AWA could mount similar challenges. To put that in context, as of 2022, there are over 12,40o facilities or individuals licensed and registered under the Act that could be subject to such a challenge. Not to mention the millions of animals in unregulated facilities.
As the majority states, neither dissent provides a cognizable standard to be applied in habeas corpus petitions for nonhuman animals following the first case in which an animal was successful.
“Tellingly, neither of our dissenting colleagues identify any intelligible standard upon which to resolve these labyrinthine issues, which buttresses our conclusion that habeas corpus—which exists to protect liberty interests—is not the appropriate forum to resolve disputes concerning the confinement of nonhuman animals.” Op at 13.
At least for now, neither elephants or chimpanzees are persons or people. But, as I am sure all would agree, she and others similarly situated must be provided humane care and adequate veterinary care required by law.
