Client, Happy (Elephant)
First elephant to pass mirror self-recognition test; held alone at the Bronx Zoo.
Happy is a female Asian elephant who was born in the wild in 1971. “Captured as a baby, probably from Thailand, in the early 1970s, along with six other calves, possibly from the same herd,” according to The New York Times, she was imported to the US and sold for $800 to the now defunct Lion Country Safari, Inc. in Laguna Hills, California, which named the calves after the dwarves in Snow White and the Seven Dwarves. That same year, Sleepy died, and the corporation relocated Happy, Grumpy, Sneezy, Doc, Dopey, and Bashful to the still operational The Lion Country Safari in Loxahatchee, Florida.
In 1977, the proprietors relocated all six elephants to circuses and zoos across the US. Happy and Grumpy were sent to the Bronx Zoo (operated by the Wildlife Conservation Society, formerly the New York Zoological Society) to be part of the newly created Wild Asia Monorail exhibit (then called the Bengali Express Monorail). There, in addition to displaying the elephants, the zoo, through the 1980s, compelled them to give rides, participate in tug-of-war contests, and perform tricks, as publicized by The New York Times (“Fordham’s Rams Defeat Zoo’s Elephant in Bronx,” “Two-Day Party in Celebration of Elephants at Bronx Zoo”) and The New Yorker (“Elephant Extravaganza”). Of Happy’s demeanor and role in these purportedly educational shows, the elephants’ “low-key, no nonsense trainer” said: “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.”
In 2002, the Bronx Zoo euthanized Grumpy after she was attacked by two other elephants held in captivity there. The zoo separated Happy from Patty and Maxine and introduced a younger female Asian elephant named Sammie (also known as Maya, Sammi, Sami, Samuel R II) to be Happy’s companion.
In 2006, the Bronx Zoo euthanized Sammie after she suffered kidney failure. Shortly after, the zoo, announced it would end its captive elephant program once one or more of the elephants had died: “If two die, officials say it would be inhumane to sustain an exhibit with a single elephant.”
From 2006 to the present, to protect Happy from the other elephants and with assurances from zoo director Jim Breheny that Happy is sufficiently happy where she is, “The Bronx Zoo’s Loneliest Elephant” has lived alone, without a true elephant companion, in a rotating portion of the 1.15-acre exhibit. According to The New York Post, “Happy spends most of her time indoors in a large holding facility lined with elephant cages, which are about twice the length of the animals’ bodies. The public never sees this.”
Breheny acknowledges Happy “does not share the same physical space with our two other elephants because they do not get along, [but] she is in tactile and auditory contact with them.” It is unclear what Breheny means by tactile contact. He insists the zoo is prioritizing Happy’s best interests and has questioned the capacity of elephant sanctuaries to provide long-term care to elephants like Happy compared to what zoos can provide.
In 2017, Patty was diagnosed with tuberculosis, as discussed in a May 2018 episode of Animal Planet’s The Zoo about her ongoing medical treatment. According to the zoo, “all of the subsequent weekly tests we have done with Patty have showed no presence of the TB bacterium … Our two other elephants, Happy and Maxine, are tested every three months and have not tested positive for TB.” In Defense of Animals and other animal advocates have criticized Animal Planet for sanitizing the elephants’ suffering in captivity.
In November of 2018, Maxine died, seeming to leave Patty and Happy each alone in the exhibit. In January of 2019, IDA announced that the Bronx Zoo was #1 on its 2018 list of the 10 Worst Zoos for Elephants in the World for continuing to refuse to allow Happy and Patty to go to an elephant sanctuary.
A Change.org petition calling for an end to Happy’s solitary confinement has over a million signatures.
CURRENT STATUS: Preparing for oral argument in the First Department (not yet scheduled, expected to take place November 2020)
A timeline of Happy’s case:
10/2/18: The NhRP announces it is filing a petition for a common law writ of habeas corpus in New York Supreme Court, Orleans County, demanding recognition of Happy’s legal personhood and fundamental right to bodily liberty as well as her transfer to an elephant sanctuary. In a supplemental affidavit submitted with the petition, elephant expert Joyce Poole writes:
“Active more than 20 hours each day elephants move many miles across landscapes to locate resources to maintain their large bodies, to connect with friends and to search for mates. Elephants have evolved to move. Holding them captive and confined prevents them from engaging in normal, autonomous behavior and can result in the development of arthritis, osteoarthritis, osteomyelitis, boredom and stereotypical behavior. Held in isolation elephants become bored, depressed, aggressive, catatonic and fail to thrive. Human caregivers are no substitute for the numerous, complex social relationships and the rich gestural and vocal communication exchanges that occur between free-living elephants.”
Read and download our petition; our Memorandum of Law; and affidavits submitted by Lucy Bates (Honorary Research Fellow, School of Psychology & Neuroscience, University of St Andrews) and Richard W. Byrne (Research Professor, School of Psychology and Neuroscience, Center for Social Learning & Cognitive Evolution, University of St Andrews) [JOINT 1 and 2], Karen McComb (Professor of Animal Behaviour & Cognition, University of Sussex), Cynthia Moss (Program Director and Trustee, Amboseli Trust for Elephants), Joyce Poole (Co-founder and Co-director, ElephantVoices) [ORIGINAL + SUPPLEMENTAL], and Ed Stewart (President & Co-Founder, Performing Animal Welfare Society). Read our press release here.
10/9/18: The Wildlife Conservation Society (which operates the Bronx Zoo) files a Memorandum of Law in opposition to the Order to Show Cause. Bronx Zoo Director Jim Breheny files an accompanying affidavit.
10/11/18: The NhRP files a Motion to Strike in response to the Wildlife Conservation Society’s improper filing of its Memorandum, which seeks to prematurely litigate some of the issues the NhRP raises in our petition and Memorandum.
10/25/18: The NhRP files a motion with the New York Supreme Court, Orleans County, asking the Court to rule by Nov. 30th or immediately thereafter on our petition. As detailed in the Memorandum of Law that accompanies our Motion to Rule, “the NhRP respectfully submits that it is entitled [under New York law] to a prompt ruling by this Court on whether it will issue the Order to Show Cause so that Happy’s ongoing unlawful imprisonment may be addressed ‘without delay.’” Nov. 30 is the return date set by the court on the NhRP’s other pending motions. Read the Motion and Memorandum of Law here.
11/16/18: The Hon. Tracey A. Bannister of the Orleans County Supreme Court issues an Order to Show Cause, setting Dec. 14, 2018 as the date at which oral argument will be held in the Orleans County Court to determine whether Happy should be released immediately from her imprisonment at the Bronx Zoo. This is the second time in United States legal history and the first time anywhere on behalf of an elephant that a habeas corpus Order has been issued on behalf of a nonhuman animal. Read our press release here.
12/3/18: The Wildlife Conservation Society files a Notice of Motion, Memorandum of Law, and attorney affidavit. Patrick Thomas, Vice President and General Curator of the Wildlife Conservation Society and Associate Director of the Bronx Zoo, files an affidavit in opposition to the NhRP’s habeas corpus petition, as does the chief veterinarian of the Bronx Zoo, Paul Calle. Bronx Zoo Director Jim Breheny files a supplemental affidavit.
12/10/18: The NhRP files a Reply Memorandum of Law and a brief opposing a Motion by the Alliance of Marine Parks & Aquariums, Protect the Harvest, and the Zoological Association of America to file an amicus brief. Joyce Poole files a second supplemental affidavit in support of the NhRP.
12/12/18: The NhRP files a motion for preliminary injunction to prevent WCS from moving Happy out of state until the case is resolved.
12/13/18: WCS files a Reply Memorandum of Law in further support of its motion to dismiss or transfer venue and in opposition to our motion for a preliminary injunction.
12/14/18: The NhRP argues for Happy’s legal personhood and fundamental right to bodily liberty in the New York Supreme Court, Orleans County. The hearing is the first time a US court has heard oral arguments on an elephant’s legal personhood and right to bodily liberty. At the end of the hearing, the judge suggests from the bench that she will likely transfer the case to Bronx County. Read our press release here and the transcript here.
1/8/19: Under New York law, the Wildlife Conservation Society drafts the Transfer Order and sends it to the NhRP for review before submitting it to the Court, which formally enters it. While we wait for WCS’s draft, we file a motion, attached to a proposed Order to Show Cause, asking Justice Bannister to stay (i.e. temporarily suspend) the Transfer Order after she enters it so we’ll have the opportunity to request permission to reargue on the grounds that the Court misapprehended the law and the facts governing venue (i.e. where Happy’s case will proceed).
1/14/19: Justice Bannister grants the NhRP’s Stay Motion on the still forthcoming Transfer Order, and the clerk tells us Justice Bannister will hear oral arguments on our Motion for Leave to Reargue on Feb. 1st at the New York Supreme Court, Orleans County.
1/18/19: Justice Bannister formally signs and enters the order to transfer the case to Bronx County.
1/24/19: The NhRP files a second motion to stay the Transfer Order in the event that Justice Bannister denies our Motion for Leave to Reargue after oral arguments. Read the accompanying Memorandum of Law here. In the event that Justice Bannister adheres to her prior decision to transfer the case, we also file a Motion for Permission to Appeal (see Memorandum of Law in support) as a way of preparing for any eventualities we’re in a position to anticipate.
1/25/19: WCS files a Memorandum of Law in opposition to our Motions for Stay and Reargument along with an affidavit by Joanna Chen, an attorney with the firm representing WCS (see Exhibits to Affidavit).
1/30/19: WCS files a Memorandum of Law in opposition to our Motions for Stay and Permission to Appeal. The NhRP files a Reply Memorandum of Law in support of our Motion for Leave to Reargue (i.e. a reply to WCS’ arguments as to why we shouldn’t be able to ask Justice Bannister to reverse her Transfer Order and allow the case to proceed in Orleans County).
1/31/19: The Court postpones oral arguments because of severe winter weather in Orleans County.
2/5/19: In a telephone hearing ordered by Justice Bannister, the NhRP argues that her Transfer Order is based on a misapprehension of the law and facts governing venue in habeas corpus cases. As detailed in our Memorandum of Law and explained by NhRP President Steven M. Wise on the call, we have the right to file suit in any county under New York habeas corpus procedure and none of the relevant provisions permit Justice Bannister to change the venue after she made the habeas corpus order she issued in November returnable in Orleans County. Moreover, habeas corpus cases not involving state institutions don’t require a “nexus” between the litigation and the venue, as WCS wrongly maintains. At the end of the call, Justice Bannister maintains her decision to change the venue to Bronx County and denies our Motion for Permission to Appeal. However, she grants us our requested 30-day stay (i.e. a temporary suspension of the Transfer Order) so we can ask the Fourth Judicial Department for permission to appeal on the venue issue. Read the hearing transcript here.
3/25/19: The NhRP files a motion with the Fourth Judicial Department seeking discretionary appellate review on the issue of venue. As we detail in our Memorandum of Law, transferring Happy’s case to Bronx County is not only a serious legal error, but will also cause intolerable delay and prolong the injustice currently being visited on Happy as an imprisoned autonomous being.
4/8/19: The Fourth Judicial Department denies appellate review on the issue of venue and enters the Transfer Order, sending Happy’s case to Bronx County.
7/10/19: The Bronx County Supreme Court schedules a preliminary conference for 8/15/19. Habeas cases are civil actions that typically don’t require such conferences. Regardless, the NhRP is pleased Happy’s case is moving forward in the Bronx.
8/2/19: The NhRP files a Notice of Motion to Strike in response to an improper filing on the part of the Wildlife Conservation Society. As detailed in our accompanying Memorandum of Law, WCS filed its Answer to our habeas corpus petition on behalf of Happy over seven months after the required deadline and without required court permission. Read the Notice of Motion and supporting papers here.
8/7/19: WCS filed a Memorandum of Law in opposition to our Motion to Strike.
8/15/19: The NhRP and WCS participate in a preliminary conference in the Bronx County Supreme Court at which it is determined that all pending motions will be argued directly before Justice Alison Y. Tuitt on 9/23/19. The NhRP serves WCS with a Supplemental Memorandum of Law Upon Transfer.
9/23/19: Justice Tuitt hears arguments for nearly five hours, which is unique for arguments on preliminary motions. Justice Tuitt provides the NhRP with ample time to delve into the most pressing issues in Happy’s case, such as who counts as a legal person with rights and why Happy—as a autonomous being—is entitled to the fundamental right to liberty and must be released to a sanctuary. Just before the Bronx County Supreme Court is set to close for the day, Justice Tuitt schedules a second hearing for Oct. 21st to allow for argument on the remaining motions as well as the core merits of Happy’s habeas corpus petition. Read our press release here and read a transcript of the arguments here.
9/29/19: The NhRP requests a temporary restraining order that prevents the Bronx Zoo from moving Happy out of New York State before the Oct. 21st oral arguments.
10/21/19: Justice Tuitt hears arguments for nearly four hours in Happy’s case. The proceedings focus primarily on the merits of Happy’s elephant rights case—Happy’s legal personhood and right to liberty, why the capacity for rights isn’t and never has been limited to human beings, and why Happy, as an autonomous being, should be released to a sanctuary where her right to liberty will be respected. Justice Tuitt ends by scheduling a third day of oral arguments for Jan. 6th and ordering the Bronx Zoo to maintain the status quo of Happy’s situation until she rules on the NhRP’s motion for preliminary injunction, which would prevent the Bronx Zoo from moving her out of state until the case is resolved. Read our press release here. Read a transcript of the arguments here.
1/6/20: The NhRP argues for over three hours before Justice Tuitt in a third and final session of arguments. As the NhRP tells the Court, Happy’s case “is not just about the cause of one poor elephant. It is about the cause of liberty.” Read our press release here and read a the transcript of the arguments here.
2/19/20: Justice Tuitt issues a decision that is powerfully supportive of the NhRP’s legal arguments to free Happy. In it, she “regretfully” denies the habeas corpus relief the NhRP demanded because she felt bound by prior appellate court decisions in the NhRP’s chimpanzee rights cases. However, she agrees with the NhRP and with New York Court of Appeals Justice Eugene M. Fahey that an autonomous nonhuman animal like an elephant or chimpanzee is not merely a legal “thing.” Instead, she writes, Happy “is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.” Further, Justice Tuitt rejects the Bronx Zoo’s claim that its continued imprisonment of Happy is good for her, stating that “the arguments advanced by the NhRP are extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo” to The Elephant Sanctuary in Tennessee. We maintain Justice Tuitt is not bound by these prior decisions and begin working on our appeal. Read our press release here.
7/10/20: The NhRP files our appeal asking the New York Supreme Court, Appellate Division, First Department to recognize Happy’s common law right to bodily liberty, reverse the Bronx Supreme Court’s dismissal of Happy’s habeas petition, and remand the case with instructions to order Happy’s release to The Elephant Sanctuary in Tennessee: “This Court has the duty to safeguard and uphold the fundamental common law liberty interest of autonomous beings,” writes the NhRP in its appellate brief. “As Happy is an autonomous being, this Court must recognize her right to bodily liberty protected by habeas corpus and order her freed.” View Part 1 of the Appendix here and view Part 2 here.
7/14/20: World-renowned legal scholar and Harvard Law School Professor Laurence H. Tribe requests leave to file an amicus brief in support of the NhRP, arguing that Happy’s legal personhood and right to liberty should be part of New York’s “noble tradition of expanding the ranks of rights holders.” Read our press release here.
7/22/20: The NhRP shares the news that two habeas corpus scholars and twelve North American philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behavior, and the philosophy of biology have submitted amicus curiae briefs in support of Happy’s legal personhood and right to liberty. The authors of the briefs are:
Justin Marceau (Brooks Institute Research Scholar at the University of Denver, Sturm College of Law) and Samuel Wiseman (Professor of Law at Penn State Law in University Park):
“One of the greatest blemishes on our justice system is the wrongful detention of persons. The Writ of Habeas Corpus is one of the tools available to correct injustices by requiring a person’s captors to justify the person’s imprisonment to the courts. While the Writ has provided a procedural vehicle for vindicating the right of thousands of humans to not be unlawfully detained, this brief argues that the time has come to consider the Writ’s application to other cognitively complex beings who are unjustly detained. The non-humans at issue are unquestionably innocent. Their confinement, at least in some cases, is uniquely depraved—and their sentience and cognitive functioning, and the cognitive harm resulting from this imprisonment, is similar to that of human beings.”
Read Marceau and Wiseman’s brief here.
Andrew Fenton (Dalhousie University), Bernard Rollin (Colorado State University), David Peña-Guzmán (San Francisco State University), G.K.D. Crozier (Laurentian University), Gary Comstock (North Carolina State University), James Rocha (California State University, Fresno), Jeff Sebo (New York University), L. Syd M Johnson (SUNY Upstate Medical University), Letitia Meynell (Dalhousie University), Nathan Nobis (Morehouse College), Robert C. Jones (California State University, Dominguez Hills), Tyler John (Rutgers University-New Brunswick):
“We reject arbitrary distinctions that deny adequate protections to other animals who share with protected humans relevantly similar vulnerabilities to harms and relevantly similar interests in avoiding such harms. We submit this brief to affirm our shared interest in ensuring a more just coexistence with other animals who live in our communities. We strongly urge this Court, in keeping with the best philosophical standards of rational judgment and ethical standards of justice, to recognize that, as a nonhuman person, Happy should be released from her current confinement and transferred to an appropriate elephant sanctuary, pursuant to habeas corpus.”
Read the philosophers’ brief here.
9/11/20: WCS files its brief with the First Department.
9/14/20: Protect the Harvest and the Alliance of Marine Mammal Parks & Aquariums submit an amicus brief in support of WCS.
9/18/20: Richard Cupp submits an amicus brief in support of WCS.
9/25/20: The NhRP files its Reply Brief.
“- NhRP petition
Respondent’s imprisonment of Happy deprives her of her ability to exercise her autonomy in meaningful ways, including the freedom to choose where to go, what to do, and with whom to be.”