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Amicus support for the fight to #FreeTheFresnoElephants

By Jake Davis

Charles Darwin once wrote: “Animals, whom we have made our slaves, we do not like to consider our equal.” Such words ring especially loud when one visits a zoo. The differences between zoos and human prisons are hard to find and exceedingly so when one considers the elephants deprived of their freedom in a zoo. Irrefutably autonomous and extraordinarily cognitively complex, elephants observe and interact with the world in ways strikingly familiar to humans. For example, they live in family units, raise their young with assistance from relatives and friends, and hold vigils when their loved ones die. In many ways, elephants have been our equals since time immemorial. Yet, in zoos, they become anxiety-ridden phantoms of the magnificent and inquisitive beings they once were. This is why the Nonhuman Rights Project (NhRP) is seeking to shift the way the law views elephants.

Elephants, like humans, should have the legal right to liberty. They should never face capture and forced removal for display in a foreign land—which is exactly what our first California clients have endured.

On August 28, 2023, the NhRP filed a petition for a writ of habeas corpus in California’s highest court on behalf of Amahle, Nolwazi, and Mabu—three elephants imprisoned in the Fresno Chaffee Zoo.  A habeas corpus petition is an ancient form of legal pleading that demands a prisoner or detainee be brought before a court to determine if their imprisonment or detention is lawful. The NhRP argues that the elephants are being illegally imprisoned at the Fresno Chaffee Zoo because, among other reasons, they are autonomous and extraordinarily cognitively complex, and one of the bedrock principles of the law is to prohibit autonomous individuals from being arbitrarily denied their freedom. If the California Supreme Court were to find that Amahle, Nolwazi, and Mabu are illegally imprisoned in the Fresno Zoo, the Court would grant them their freedom, which, legally speaking, would mean the elephants would receive a right, i.e., the right to liberty.

What is the right to liberty?

A right allows its holder to seek redress for deprivation of the fundamental interest associated with that right. The right to liberty, a right you and I have because we were born human, means the holder of that right cannot be imprisoned absent a compelling justification like the commission and subsequent conviction of a crime. In the case of Amahle, Nolwazi, and Mabu, recognizing their right to liberty would mean they must be released from their imprisonment because there is no compelling justification for keeping them behind bars.

Expert support for the Fresno Chaffee Zoo elephants’ right to liberty

Seven of the world’s most renowned elephant scientists, with over two hundred years of cumulative experience, have submitted sworn statements urging the Supreme Court to grant Amahle, Nolwazi, and Mabu the fundamental right to liberty. However, even with the world’s leading elephant scientists supporting this case, it has not yet been enough to sway a California court into even allowing the elephants a hearing on the merits of their case, which they are clearly entitled to under California common law. This is why the filing of amicus letters is so crucial.

Amicus curiae or, “friend of the court,” is an individual, a group, or an organization offering the court additional information or perspective about a case. At the California Supreme Court, amicus support takes the preliminary form of amicus letters, which are informal submissions to the Court in the form of a letter you might write to a friend. Amicus letters do not have a word count, they can be signed by any number of individuals, and there is no restriction on the topics they can cover. Later during litigation, amicus briefs might become available. The distinctions between amicus letters and amicus briefs are minimal and both have the same objective: rule in favor of the party we support and here’s why.

The NhRP is thrilled to have already received thirteen amicus letters supporting this case. The letters are wide-ranging in their subject matter and authorships, but the underlying theme is the same in all of them: it is wrong to keep autonomous individuals behind bars, and doing so puts the zoo’s interests ahead of the elephants’ fundamental needs. More amicus letters are expected in the coming weeks; here is where our amicus support stands today.

Amicus support to date

Dr. Andrew Linzey and Dr. Clair Linzey are animal theology experts who argue there is a moral duty rooted in Christian theology that requires the Court to protect Amahle, Nolwazi, and Mabu’s liberty interests. The NhRP has also received amicus letters from Buddhist scholars, Jewish scholars, and Eastern Orthodox scholars who argue their religions’ tenets call for an end to the elephants’ imprisonment.

Dr. Gary Comstock, Dr. Adam Lerner, and Peter Singer are internationally recognized philosophers, authors, and ethicists who argue that under any theory of ethics, it is wrong to keep elephants in such critical conditions. Singer is the highly influential author of the 1975 book Animal Liberation, a cornerstone of the animal rights movement.

Dr. David Favre, Dr. Maneesha Deckha, and Dr. Steven Tauber are two animal law professors and a political science professor, respectively, who individually submitted amicus letters calling for the Supreme Court to evolve the law much the same way it has done historically in granting rights to disenfranchised individuals. Dr. Tauber’s letter powerfully compares the NhRP’s case to Brown v. Board of Education, which effectively ended state-sponsored segregation in the American South.

California attorney Shannon Minter and his colleague Evan Wolfson are legendary LGBTQ civil rights attorneys who worked tirelessly through litigation to win marriage equality for same-sex couples. Evan Wolfson was named to Time magazine’s list of “100 most influential people in the world” in 2000. They analogize the NhRP’s case to early, unsuccessful efforts to seek the right to marry for gay couples, noting: “as amici Minter and Wolfson over their careers argued again and again and again––during which time the LGBT movement gained traction and successes began to come after long and repeated rejection––rights are not defined by who is denied them.”

Judge Edwin Cameron, who sat on South Africa’s highest court for over a decade, has also submitted an amicus letter. Hailed by Nelson Mandela as one their country’s finest heroes and renowned for his unrelenting pursuit of justice for the marginalized, Judge Cameron’s amicus letter argues, “[i]f we have rejected the legalised discrimination based on power disparities inherent in race, religion and sex, why do we not reject the legalised discrimination based on one’s species?”

Thirty-three UK animal law experts, led by University of Leicester professor Dr. Joe Wills, have submitted an amicus letter explaining why the lower court decisions in this case have been wrong and why habeas corpus can be used to assist wrongfully imprisoned nonhuman animals as it is used for wrongfully imprisoned humans.

Similarly, twenty-three law professors from across the US and Canada, led by the Chair of the Justice for Animals Program at the University of San Francisco School of Law, Matthew Liebman, have submitted an amicus letter. Their letter, which includes signatories like internationally renowned legal scholar Laurence Tribe, argues that because elephants are “sentient animals with goals, desires, emotions, familial connections, and other significant capabilities,” they “have a fundamental right to liberty,” which would allow them to pursue their lives and flourish “without unjustified human intervention.”

Finally, Friends of Animals (FoA), a US-based nonprofit that filed a lawsuit to stop the capture and forced removal of Amahle and Nolwazi from their native Africa, has filed an amicus letter. FoA urges the Supreme Court to take account of the fact that “[n]o zoo can give elephants the autonomy that they deserve and thus no zoo should confine elephants.” They go on to add, “[t]he unnatural confinement of any elephant, whether that elephant was born in captivity or in the wild, is an injustice.”

With the help of 90 amicus letter signatories (and counting), the NhRP hopes to remedy the injustice of Amahle, Nolwazi, and Mabu’s imprisonment at the Fresno Chaffee Zoo.

Our litigation to #FreeTheFresnoElephants is our first lawsuit in California. Learn more about Amahle, Nolwazi, and Mabu’s case on their client page.


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