Letter #3 from the Front Lines of the Struggle for Nonhuman Rights: October 2018 to June 2020
By NhRP President Steven M. Wise
For shamefully long periods in US history, African-Americans, Native Americans, and women, among other oppressed and marginalized individuals, were considered legal things with no rights, then legal persons with few rights. It took centuries of painful civil rights struggles fought in courtrooms, in legislatures, on battlefields, and in the streets to finally secure the legal personhood of all human beings.
However, as demonstrated by the recent police murders of George Floyd, Breonna Taylor, Rayshard Brooks, and many other Black people, as well as the Supreme Court decision just this past week to extend workplace protections to LGBTQ people under the 1964 Civil Rights Act, the struggle to secure recognition of legal rights — and justice when these rights are violated — is and must be ongoing. Ceaseless collective vigilance is required to protect against tyranny and oppression, including and especially from within the halls of power where respect for liberty, dignity, and equality remains a repeatedly broken promise of justice for many human beings. The unending work of fulfilling that promise belongs to all of us.
Social psychology research has demonstrated that the narrower individuals perceive the moral divide between people and nonhuman animals the less likely they are to be biased against marginalized people. Similarly, the NhRP’s core struggle is not just about advocating for the rights of nonhuman animals; it’s about strengthening the values and principles of justice that form the foundation of human rights. Simply put, our US habeas corpus litigation on behalf of nonhuman animals asks judges to refuse to allow respect for liberty, dignity, and equality to arbitrarily and irrationally end with human beings.
Two hundred and forty-eight years ago today, Lord Mansfield, Chief Justice of the Court of King’s Bench, effectively ended human slavery in England by ordering James Somerset freed. Somerset had escaped from his London master, Charles Stewart, only to be recaptured and chained to the deck of the “Ann and Mary” to be sailed to Jamaica and sold in its slave markets. After issuing a common law writ of habeas corpus on Somerset’s behalf, Lord Mansfield ended his imprisonment as it was “so odious” the common law would not support it. When the American Colonies separated from England, the Somerset decision became part of their common law.
Accordingly, we in the NhRP have based our struggle to attain the fundamental common law right to bodily liberty protected by the common law writ of habeas corpus for elephants and chimpanzees in part upon Lord Mansfield’s decision. Judges have to ignore it to rule against us.
A little over six years into a struggle for nonhuman rights we began in New York State, we are reaching a critical point.
Law professor, scholar, and activist Robert Cover, in his 1975 book Justice Accused: Antislavery and the Judicial Process, focused on “the dilemma of the anti-slavery judge — the man who would, in some sense have agreed with my characterization of slavery as oppression.” Theirs was “the story of earnest, well-meaning pillars of legal respectability and of their collaboration in a system of oppression.” Cover did not bother discussing judges who didn’t see human slavery as oppression.
One of those latter judges was Chief Justice of the United States Roger B. Taney who, in the Dred Scott case, wrote that Black people “had no rights which the white man was bound to respect.” As Don E. Fehrenbacher wrote in his Pulitzer Prize-winning history of Dred Scott’s case, “(a)s a matter of historical record, the Court decided what Taney declared it decided. Whether it was based on sound law, accurate history, and valid logic is another question … not absolutely separable from the moral problem inherent in the enslavement of men.” Fehrenbacher made clear that it was not.
Another such judge was Thomas Ruffin, who wrote in State v. Mann that a slave “surrenders his will in implicit obedience to that of another. Such obedience is the consequence only of uncontrolled authority over the body. There is nothing else which can operate to produce the effect. The power of the master must be absolute, to render the submission of the slave perfect.”
The time has arrived in which New York judges must decide whether they will continue to collaborate in a system that has for so long and so severely oppressed all nonhuman animals. Will they acknowledge that, at the very least, such extraordinarily cognitively complex and autonomous nonhuman beings as elephants, chimpanzees, and cetaceans are entitled to the common law right to bodily liberty that science, morality, precedent, and good public policy compel? Or will they emulate their justly and widely criticized predecessors, such as Massachusetts Chief Justice Lemuel Shaw and United States Supreme Court Justice John McLean, and — ignoring simple justice — retreat to rigid interpretations of precedent that do not compel their decisions and try to shift their responsibility for making just decisions from themselves onto legislatures?
As we look ahead to the filing of our appeal in our elephant client Happy’s case, here is the dilemma our cases present to judges today:
On November 16, 2018, then-New York Supreme Court Justice Tracey A. Bannister, sitting in the tiny rural court of Albion near Rochester, issued the world’s first habeas corpus order on behalf of an imprisoned elephant as requested by the NhRP. Our client Happy is an Asian elephant whom the Wildlife Conservation Society, which has run the Bronx Zoo for over a century, has imprisoned on a one-acre plot of land at the zoo in the summer and in a smaller industrial cement structure lined with windowless and barred cages in the winter since she was a youngster more than forty years ago. This is the same Wildlife Conservation Society that in September of 1906 imprisoned an African Pygmy man named Ota Benga in the Bronx Zoo’s Monkey House, doubling attendance before they finally bowed to public pressure led by an outraged Black community three weeks later. All year, for the last fourteen years, the same Bronx Zoo has forced Happy to spend her life alone, despite the suffering isolation is known to cause these immensely social beings.
Over the objection of the NhRP, Justice Bannister transferred Happy’s case from Albion to the Bronx. In August of 2019, Happy’s case was assigned to Supreme Court Justice Alison Y. Tuitt, who heard thirteen hours of oral argument over the next five months while issuing two injunctions against the Bronx Zoo.
The NhRP presented five affidavits from four of the most respected elephant cognition and behavior experts in the world: Joyce Poole, Cynthia Moss, Lucy Bates, Richard Byrne, and Karen McComb. With their help, our arguments boiled down to this: Happy is an autonomous, extraordinarily cognitively complex, and immensely social being. She is therefore entitled to the common law right to bodily liberty protected by the writ of habeas corpus as a matter of common law liberty and equality. We asked Justice Tuitt to extricate Happy from the Bronx Zoo, then send her to The Elephant Sanctuary in Tennessee or the Performing Animal Welfare Society sanctuary near Sacramento.
The Bronx Zoo repeatedly reminded the judge that “Happy is happy” but failed to present even a single affidavit in opposition from any elephant cognition and behavior expert. Considering that the Wildlife Conservation Society is a billion-dollar outfit with elephant experts on its staff and access to a platoon of them from around the world, its failure even to try to challenge the opinions of our eminent experts recalls the “dog that didn’t bark” from the famous Sherlock Holmes short story “The Adventure of Silver Blaze.” Their silence signaled the Wildlife Conservation Society’s complete inability to contradict our experts. But that did not and should not come as a surprise. What self-respecting elephant cognition and behavior expert is going to swear that it’s better for an elephant to live for years by herself on one acre of land in the summer and in an even smaller, windowless, cement structure in the winter than to wander freely over 2,300 acres of woods and fields and lakes alone or with her elephant friends, as she chooses?
That left the Bronx Zoo with a single argument that had nothing to do with Happy. They argued that Justice Tuitt had to rule against Happy because New York’s Third Department appellate court had in 2014 ruled that no nonhuman animal could ever have any legal right because no nonhuman animal could ever bear legal duties.
On Feb. 18, 2020, Justice Tuitt issued her decision. She rejected the Bronx Zoo’s the claim that “Happy is happy,” finding instead 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 an elephant sanctuary.” Judge Tuitt also found that Happy is “an extraordinary animal with complex cognitive abilities, an intelligent being with advanced analytical abilities akin to human beings” and “an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty.”
She noted that in May of 2018 New York Court of Appeals Judge Eugene Fahey had issued an opinion that stated:
(T)he issue whether a nonhuman has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.
The only reason Justice Tuitt did not order Happy’s immediate release to a sanctuary was because “(r)egrettably,” in her view, she “was bound by the legal precedent set by the [Third Department] which it held that animals are not ‘persons’ entitled to rights and protections afforded by the right of habeas corpus.”
In his 2018 opinion, however, Judge Fahey was not impressed by the Third Department’s decision, writing: “Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child.”
Justice Tuitt didn’t mention that in 2017 the NhRP had lost a similar case before the First Department (the intermediate appellate court that oversees the Bronx) solely on the preliminary procedural ground that the lower court had been within its discretion to refuse to hear the second habeas corpus petition we’d brought on behalf of Tommy.  It should have had nothing to do with Happy’s case, despite the fact the First Department, in the tradition of Chief Justice Taney, wrote that the NhRP:
argues that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights. This argument ignores the fact that these are still human beings, members of the human community.
Justice Tuitt didn’t mention these sentences because they were what lawyers call “dictum.” That means that the sentences had nothing to do with the reason the case was decided, which was that the lower court had the discretion to decide not to hear the second habeas corpus petitions on behalf of the chimpanzees Tommy and Kiko. They carried no precedential weight. On the other hand, Judge Fahey dismissed the First Department’s dictum that merely being human was the reason not to grant a chimpanzee habeas corpus relief: “The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species.”
Justice Tuitt noted that Judge Fahey had written that:
The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species.
In short: we have won our scientific and moral battles over the Wildlife Conservation Society. The remaining fight is whether Happy can be denied her common law right to bodily liberty protected by a writ of habeas corpus either because she lacks the ability to bear legal duties, as the Third Department claimed, or because she isn’t a human being, per the First Department’s dictum. These will be the subjects of our upcoming attack in the appellate courts and the hearing we expect to have in the fall.
Here are some of the major arguments we’ll make:
First, for over twenty years the New York Pet Trust Statute, EPTL 7–8.1, has granted certain nonhuman animals the legal right to the assets contained in trusts in which people make them the beneficiary. We have made every New York client the NhRP has ever had, all the chimpanzees and Happy, the beneficiary of such a trust. It’s obvious that these nonhuman animals need not have a capacity for the legal duties the Third Department claimed was necessary for any legal right because they lack that capacity but they have the legal right to the assets of the trust. It’s flamingly obvious that these nonhuman animals aren’t human beings, which the First Department status claimed was necessary for any legal right.
Second, both The First and Third Departments made another serious yet obvious mistake. It has been generally agreed for over a century that there are four broad categories of legal rights. Each right has a different correlate so that for every right you have, someone else has the correlate of that right. For example, a claim right correlates with a duty. If we sign a contract that requires me to buy your car for $10,000, I have a claim on your car and you have the correlative duty to give it to me. You have a claim on my $10,000 and I have a duty to pay it to you. It’s obvious that the right to bodily liberty protected by habeas corpus that the NhRP claims for its nonhuman animal clients doesn’t involve a contract, isn’t a claim right. So what is it?
It’s an immunity right. That kind of right correlates not with a duty but with a disability. For example, the Thirteenth Amendment’s abolition of slavery gives us all an immunity right not to be enslaved. All immunity rights correlate not with a duty, but with a disability. Thus the correlate to my immunity right not to be enslaved is that you are disabled from enslaving me. Whether anyone can bear duties is irrelevant to my immunity right not to be enslaved. Humans unable to bear duties still cannot be enslaved. The right to bodily liberty is, like the right not to be enslaved, an immunity right that correlates with a disability, and not a claim right that correlates with a duty. Somehow the First Department and the Third Department either didn’t understand this or chose to ignore it.
Third, the major case in New York on how personhood is determined is a 1972 case called Byrn v. New York City Health & Hospitals Corporation. The question in Byrn was whether a human fetus had the federal constitutional right not to be aborted. The court said it did not. This was despite the fact that the court conceded that a fetus was human. Byrn noted that by “according legal personality to a thing the law affords it the rights and privileges of a legal person.” The court said nothing about duties. Byrn also said that personhood was not a matter of biology but to be determined in light of evolving public policy and moral principle.
Perhaps most importantly, the New York courts have made clear that the liberty right that protects autonomy is of supreme importance. For example, referring to the right of a mentally ill patient involuntarily committed to a State institution to refuse antipsychotic medication, the Court of Appeals wrote:
In our system of a free government, where notions of individual autonomy and free choice are cherished, it is the individual who must have the final say in respect to decisions regarding his medical treatment in order to insure that the greatest possible protection is accorded his autonomy and freedom from unwanted interference with the furtherance of his own desires.
The right to equality in New York means “likes must be treated alike.” The NhRP will argue that elephants and humans are alike in the only way relevant to the right to bodily liberty protected by a writ of habeas corpus; we both are autonomous, able to freely choose where to go, when, and with whom. What is irrelevant to the right of bodily liberty is one’s species, which, to quote Judge Fahey again, is “nothing more than the premise that (a nonhuman being) is not a member of the human species.”
The Bronx Zoo’s claim that species is the solely relevant characteristic for the recognition of rights arbitrarily undermines the New York courts’ common law supreme value of autonomy and self-determination. Worse, it echoes prior naked judicial biases — or, as Judge Leon Yankwich once called them, “prejudice in the form of law” — that we all are still trying to forget more than a century on. Recall Chief Justice Taney and Dred Scott. But also know that California Supreme Court Chief Justice Murray once held that a Chinese man couldn’t testify against a white man in court, as the Chinese “indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference.” A United States Attorney once argued the Ponca Chief Standing Bear wasn’t a “person” for the purposes of habeas corpus just because he was a Native American. And the Wisconsin Supreme Court Chief Justice Ryan refused to allow Lavinia Goodell to practice law just because she was a woman.
We know how to explain the failings of Chief Justice Taney, Judge Ruffin, Chief Justice Murray, and Chief Justice Ryan. But how does one explain the failings of Chief Justice Shaw, Justice McLean, and the First and Third Departments? These things can be hard to know. Again, possibilities can be found in Professor Cover’s book. Chief Justice Shaw, in In re Sims, was confronted with a writ of habeas corpus brought on behalf of Thomas Sims, a fugitive slave whose master had apprehended him and was determined to return him to slavery in Georgia. Unjustifiably relying on inappropriate precedent, distorting history to make it seem that the Constitution’s Fugitive Slave Clause was of fundamental importance, this anti-slavery judge doomed Thomas Sims to be returned to slavery, publicly whipped, and sold on the auction block.  In Jones V. Van Zandt, when Justice McLean faced a master demanding damages against an abolitionist who had harbored his fugitive slave, he acknowledged to the jury that slavery is “founded in wrong, in oppression, in power against right.” Nonetheless, the jury was ordered to ignore these facts and their consciences.
But there are other possible explanations.
First, they may be implicitly biased. As I noted in my Letter #1 from the Front Lines, the judges before whom we argue were all raised in a culture that has long viewed all nonhuman animals as “things” who have no rights and have never had rights. Before they were suddenly confronted by our arguments they were, understandably, likely to have never thought much, or at all, about whether any nonhuman animal should have the legal right to bodily liberty protected by a writ of habeas corpus.
As USC Law Professor Christopher Stone wrote in his famous article about whether trees should have standing:
Each time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of “us”—those who are holding rights at the time. 
Most judges are therefore likely, automatically and unconsciously, to be implicitly biased against the arguments the NhRP presents for the legal rights of any nonhuman animal — just as they are likely to be biased about arguments that concern race, gender, sexuality, religion, weight, age, and ethnicity — because “our minds have been shaped by the culture around us. In fact they have been invaded by it.”
The NhRP has always understood that the minds of most judges will be influenced by the dominant cultural, especially traditionally legal, attitudes towards the rights of nonhuman animals and that it may be difficult for these judges to avoid their influence no matter how powerful our arguments are. This was one of the many reasons we chose to seek habeas corpus relief, as one has the right to keep bringing habeas corpus lawsuits, even if their client has lost previously allows us to repeatedly place our arguments before the same courts, sometimes the same judges. Happy’s appeal will be the second time judges of the First Department will have had the opportunity to hear our arguments. If a further appeal is sought by either party to the New York Court of Appeals it will be the fourth time those judges will have had the opportunity to consider our arguments.
The third time we sought a further appeal to the Court of Appeals constitutes a remarkable demonstration of the power of appearing multiple times before the same courts and judges. Judge Fahey, of that court, wrote that “in the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision … I continue to question whether the Court was right to deny leave in the first instance.” Then he powerfully concluded that “(w)hile it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”
Second, judges may weigh an elephant’s fundamental right to bodily liberty against some lesser value. Both Chief Justice Shaw and Justice McLean weighed the liberty of a slave against what each judge believed was required to preserve the Union. Other judges acted differently. California County Judge T.W. Frelon issued a writ of habeas corpus on behalf of a slave named Archy Lee who was brought into California, and who, despite slavery being illegal under the California Constitution, had been victimized by an illegal and racist decision of the California Supreme Court that ignored the law and condemned Lee to illegal slavery. So Judge Frelon ignored the Supreme Court.
Third, judges may inappropriately seek to shift the responsibility of deciding the common law right to bodily liberty protected by common law habeas corpus onto the legislature. For example, the Third Department wrote that “while petitioner has failed to establish that common-law relief in the nature of habeas corpus is appropriate here, it is fully able to importune the Legislature to extend further legal protections to chimpanzees.” Similarly, the First Department wrote that “(w)hile petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process.” But, while there is a place for legislators in the larger debate and struggle, it is judges not legislators who make the common law. By definition.
The tide is turning in favor of nonhuman rights in New York, as it inevitably must when the arguments that support the status quo become untenable. We’ll let you know on our website when we file our brief this summer, when the Bronx Zoo files theirs, and when we file our reply so you can follow along. You can watch the oral argument, which will be live-streamed. We will put a copy up on the website. Then you can read the First Department’s decision on our website. Win or lose, our next stop will be the New York Court of Appeals.
Autonomous nonhuman animals as chimpanzees and elephants need freedom and a community of other members of their species to survive and thrive, and we all deserve to live in a world in which respect for liberty, dignity, and equality runs so deep, is so embedded in how we view and treat human beings, that we don’t hesitate to extend it to nonhuman animals. We hope the New York courts will help us get there.
 Somerset v. Stewart, 1 Lofft 1, 19 (K.B. 1772).
 Justice Accused at 6
 Justice Accused at 6
 Scott v. Sandford, 60 U.S. 393, 407 (1857)
 Don E. Fehrenbacher, The Dred Scott Case — Its Significance in American Law and Politics 334 (1978).
 State v. Mann, 13 N.C. 263, whom 266 (1829)
 Justice Accused at 232–238, 258.
 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D. 3d 148 (3rd Dept. 2014).
 Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1058 (N.Y. 2018)(Fahey, J. concurring)
 Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)
 Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 152 A.D. 3d. 73 (1st Dept. 2017)
 One Justice of the First Department, who tried to deny the NhRP its right even to appeal to the court, was thwarted only when the NhRP took the literally unprecedented anywhere in the world step of bringing what lawyers call a writ of mandamus — which is a demand that a court order a public official to do her duty — in the First Department demanding that court order itself to allow the NhRP to appeal (ask any lawyer if she has ever heard of such a thing and she will swear you must be joking). But it worked and the appeal was heard.
 Nonhuman Rights Project , on Behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)
 Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1057 (N.Y. 2018)(Fahey, J. concurring)
Wesley J. Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning,” 23 Yale L.J. 16, 30, 40 (1913);
 31 N.Y. 2d 194 (1972).
 Byrn, 31 N.Y. 2d. at 201.
 Byrn, 31 N.Y. 2d. at 201.
 Leon Yankwich, “Social Attitudes as Reflected in Early California Law,” 10 Hastings L. J. 250, 257–261 (1959)
 People v. Hall, 4 Cal. 399, 404–5 (1854). This was the case that Judge Yankvich was specifically referring to.
United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695, 796–7 (C.C. Neb. 1879).
In re Goodell, 39 Wis. 232 (1875).
 61 Mass. 285 (1851). See Leonard W. Levy, The Law of the Commonwealth and Chief Justice Shaw 98–101 (1987); Justice Accused 250–251
 13 F. Cas. 1040, 1045 (№7501)(1843)
Justice Accused 246–247.
 “Should Trees have Standing,” 45 So. Cal.L. Rev. 450, 455 (1972)
 Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1059 (N.Y. 2018)(Fahey, J. concurring)
 Nonhuman Rights Project , on behalf of Tommy v. Lavery, 31 N.Y. 2d 1054, 1059 (N.Y. 2018)(Fahey, J. concurring)
 Justice Accused 248; The Law of the Commonwealth and Chief Justice Shaw 99.
 Rudolph M. Lapp, Archy Lee — A California Fugitive Slave Case 21 (1969); Matter of Archy, 9 Cal. 147 (1858)
 People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D. 3d 148, 152–153 (3rd Dept. 2014).
Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 152 A.D. 3d. 73, 80 (1st Dept. 2017)