SUPERIOR COURT JUDICIAL DISTRICT OF LITCHFIELD AT TORRINGTON

In the matter of a Petition for a Common Law Writ of Habeas Corpus,

NONHUMAN RIGHTS PROJECT, INC., on behalf of BEULAH, MINNIE, and KAREN, Petitioner,

v.

R.W. COMMERFORD & SONS, INC. a/k/a COMMERFORD ZOO, and WILLIAM R. COMMERFORD, as

President of R.W. COMMERFORD & SONS, INC., Respondents.

November 13, 2017

VERIFIED PETITION FOR A COMMON LAW WRIT OF HABEAS CORPUS

Beulah, an elephant kept by the Commerford Zoo in Connecticut.  Beulah collapsed and died in 2019.

PARTIES

1. Petitioner the Nonhuman Rights Project, Inc. (“NhRP” or “Petitioner”) is a not-for-profit corporation organized pursuant to the laws of the State of Massachusetts with a principal address at 5195 NW 112th Terrace, Coral Springs, FL 33076. Its mission is “to change the common law status of at least some nonhuman animals from mere ‘things,’ which lack the capacity to possess any legal rights, to ‘persons,’ who possess such fundamental rights as bodily integrity and bodily liberty, and those other legal rights to which evolving standards of morality, scientific discovery, and human experience entitle them.” The NhRP does not seek to reform animal welfare legislation.

2. Respondent R.W. Commerford & Sons, Inc., also known as the Commerford Zoo, is a Connecticut corporation with a business address at 48 Torrington Road, Goshen, CT 06756.

3. Respondent William R. Commerford is the President of R.W. Commerford & Sons, Inc., with a residential address at 64 Crossman Road, Goshen, CT 06752.

4. Karen is a female African elephant in her mid-thirties. She was captured in the wild around 1983. Respondents have owned Karen since 1984. Her last known address is 48 Torrington Rd, Goshen, CT 06756.

5. Beulah is a female Asian elephant in her mid-forties. She was captured in the wild in 1967 in Myanmar. Upon information and belief, Respondents have owned Beulah since 1973. Her last known address is 48 Torrington Rd, Goshen, CT 06756.

6. Minnie is a female Asian elephant. Respondents have owned Minnie since at least 1989. Her last known address is 48 Torrington Rd, Goshen, CT 06756.

INTRODUCTION

7. On behalf of Beulah, Minnie, and Karen, the NhRP submits this Verified Petition for a Common Law Writ of Habeas Corpus (the “Petition”) and states: This Petition is filed pursuant to Connecticut Practice Book (“Practice Book”) § 23-21 et seq. as well as Conn. Gen. Stat. § 52-466 et seq., and requests that this Court: (a) issue the requested writ of habeas corpus and require Respondents to file a return to the Petition pursuant to Connecticut Practice Book § 23-21 et seq. including, inter alia, setting forth the facts claimed to justify the denial of liberty, detention and imprisonment of Beulah, Minnie, and Karen, three illegally confined elephants in Respondents’ custody; and (b) order the immediate release of Beulah, Minnie, and Karen from such illegal confinement.

8. This Petition is brought under the common law of Connecticut, which is broad, flexible, and adaptable. State v. Brocuglio, 264 Conn. 778, 793 (2003); State v. Guess, 244 Conn. 761, 778 (1998); Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 196 (1996); Dacey v. Connecticut Bar Association, 184 Conn. 21, 25-26 (1981).

9. Connecticut courts have long recognized the common law writ of habeas corpus. Hudson v. Groothoff, 10 Conn. Supp. 275, 278 (Conn. C.P. 1942). This Petition is filed as an application in good faith for an extension of the Connecticut common law of habeas corpus to Beulah, Minnie, and Karen, who are being imprisoned solely because they are legal things rather than the legal persons they should be for the purpose of common law habeas corpus.

10. The Expert Affidavits attached to this Petition set forth the facts that demonstrate that elephants such as Beulah, Minnie, and Karen are autonomous beings who live extraordinarily complex emotional, social, and intellectual lives and who possess those complex cognitive abilities sufficient for common law personhood and the common law right to bodily liberty protected by the common law of habeas corpus, as a matter of common law liberty, hequality, or both.

11. As this action is instituted ex parte pursuant to Practice Book § 23-23, Respondents have not been served with this Petition. The NhRP will promptly serve the Petition upon Respondents upon the issuance of the writ or as otherwise directed by the Court.

12. The NhRP is entitled, as of right, to the issuance of the writ. Practice Book § 23-24 provides that the court: “shall issue the writ unless it appears that: (1.) the court lacks jurisdiction; (2.) the petition is wholly frivolous on its face; or (3.) the relief sought is not available.”

13. There is no question this court has jurisdiction and that relief is available, infra at Paragraphs 46-48.

14. The Petition is also not “wholly frivolous on its face,” a requirement satisfied by a mere “possibility of victory.” Henry E.S., Sr. v. Hamilton, 2008 WL 1001969, at *5 (Conn. Super. Ct. Feb. 28, 2008). See The Nonhuman Rights Project, Inc. ex rel. Hercules & Leo v. Stanley, 16 N.Y.S.3d 898, 917 (N.Y. Sup. Ct. 2015) (“Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed.”)

15. While this Petition raises a novel issue of personhood in Connecticut common law jurisprudence, it is far from “wholly frivolous on its face.” To the contrary, it is powerfully meritorious and the writ it seeks has been issued on behalf of nonhuman animals at least four times in other jurisdictions.

16. An order to show cause, which is the equivalent of the writ pursuant to New York Civil Practice Law and Rules (“CPLR”) Article 70, was issued once on behalf of two chimpanzees in New York. Id. at 917.

17. The writ was also issued once on behalf of a chimpanzee named Cecilia in Mendoza, Argentina, The Third Court of Guarantees, Mendoza, Argentina, in In re Cecilia, File No. P-72.254/15 at 22-23 (November 3, 2016), which declared a chimpanzee to be a “nonhuman person,” then ordered her immediate release from imprisonment in a zoo to a sanctuary in Brazil.

18. The writ was also issued once on behalf of an orangutan named Sandra in Buenos Aires, Argentina) Asociacion de Funcionarios y Abogados por los Derechos de los Animales y Otros contra GCBA, Sobre Amparo (Association of Officials and Attorneys for the Rights of Animals and Others v. GCBA, on Amparo), EXPTE. A2174-2015 (October 21, 2015).

19. A writ was also issued once on behalf of a bear named Chucho in Colombia, though that ruling was overruled by a higher court and further appeal is pending. Luis Domingo Gomez Maldonado contra Corporacion Autonoma Regional de Caldas Corpocaldas, AHC4806- 2017 (July 26, 2017)

20. The cases that the NhRP filed on behalf of chimpanzees in New York are being noted by the courts of other states as well. For instance, in State v. Fessenden, 355 Ore. 759, 769- 70 (2014), the Supreme Court of Oregon referenced the “ongoing litigation” brought by the NhRP which “seeks to establish legal personhood for chimpanzees” and wrote: “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still[.]”

21. The NhRP’s litigation and arguments over whether a nonhuman animal can be a legal person for habeas corpus or any other purpose has been covered by thousands of media outlets around the world1 and has captured the interest of the world’s leading legal scholars and the most selective academic publications,2 while catalyzing the development of a whole field of academic research and debate, generating extensive discussion in dozens of law review articles, multiple academic books, several science journals, and a variety of legal industry publications.3

22. Who is a “person” is the most important individual question that can come before a court, as the term person identifies those entities capable of possessing one or more legal rights. Only a “person” may invoke a common law writ of habeas corpus and the inclusion of elephants as “persons” for that purpose is for this Court to decide.

23. As the NhRP is not seeking any right other than the common law right to bodily liberty, this Court need not determine whether Beulah, Minnie, and Karen are “persons” for any purpose other than the Connecticut common law of habeas corpus.

24. “Person” has never been a synonym for “human being;” rather it designates Western law’s most fundamental category by identifying those capable of possessing a legal right. Personhood determines who counts, who lives, who dies, who is enslaved, and who is free.

25. The procedures for utilizing the common law writ of habeas corpus are set forth in Title 52, C.G.S.A. §§ 52-466 - 52-470, and in the Practice Book §§ 23-21 - 23-40 and do not affect the substantive entitlement to the writ. “Such statutes have not been intended to detract from its force, but rather to add to its efficiency . . . the statutes have been intended to prevent the writ being rendered inoperative.” Hudson v. Groothof, 10 Conn. Supp. 275, 278-79 (1942). See Kaddah v. Comm'r of Correction, 324 Conn. 548, 565-66 (2017).

26. The issuance of the writ by this Court harmonizes with the procedure historically used by courts faced with habeas petitions that turned on novel (at the time) personhood claims.

27. In Somerset v. Stewart, 1 Lofft 1, 98 Eng. Rep. 499 (K.B. 1772), which was incorporated into Connecticut common law, State v. Courchesne, 296 Conn. 622, 680 (2010), Lord Mansfield for the first time in history issued the writ that required the respondent to provide a legally sufficient reason for detaining a black slave.

28. In Arabas v. Ivers, 1 Root 92 (Conn. Super. 1784), the court issued a writ of habeas corpus upon the petition of a slave who claimed he was being unlawfully detained.

29. In United States ex rel. Standing Bear v. Crook, 25 F. Cas. 695 (C.C. Neb. 1879), the court rejected the United States Attorney’s argument that no Native American could ever be a “person” able to obtain a writ of habeas corpus and issued a writ of habeas corpus on behalf of the Ponca Chief, Standing Bear.

30. In Stanley, 16 N.Y.S.3d at 908, the court rejected respondents’ argument that the issuance of the writ “inappropriately requires an initial, substantive finding that chimpanzees are not entitled to legal personhood for the purpose of obtaining a writ of habeas corpus.”

31. This Court’s determination of personhood will turn on whether elephants, as autonomous beings, should be recognized as “persons” pursuant to a Connecticut common law that keeps abreast of evolving standards of justice, morality, experience, and scientific discovery.

32. Autonomy is the supreme value at the heart of the Connecticut common law of liberty. Trumping even the State’s interest in life, it mandates the protection of the fundamental interest of autonomous beings to their bodily liberty through the common law of habeas corpus.

33. Connecticut common law equality forbids discrimination based upon unreasonable means or illegitimate ends. Beulah’s, Minnie’s, and Karen’s common law classification as rightless “things” rather than “persons” violates equality as it furthers the illegitimate end of depriving autonomous beings of their bodily liberty.

34. Connecticut common law equality further forbids the deprivation of fundamental rights based upon a single characteristic or trait. Classifying Beulah, Minnie, and Karen as “things” solely because they are not human, thereby denying them the capacity for any legal right, is so inequitable that it violates basic common law equality.

35. This Court must hold the required hearing and recognize Beulah’s, Minnie’s, and Karen’s common law personhood and right to bodily liberty then order their immediate release from their unlawful confinement.

36. For the safety of the elephants as well as the public, this Court should consider releasing Beulah, Minnie, and Karen to the Performing Animal Welfare Society Sanctuary (“PAWS”) near Sacramento, California, which has agreed to provide permanent sanctuary for them.4

37. At PAWS, Beulah, Minnie, and Karen, along with other elephants, will flourish in an environment that respects their autonomy to the greatest degree possible, as close to their native Asia and Africa as may be found in North America.

38. This habeas corpus case is not an “animal protection” or “animal welfare” case, any more than a habeas corpus case brought on behalf of a detained human would be a “human protection” or “human welfare” case. See People ex rel. Nonhuman Rights Project, Inc. v. Lavery, 124 A.D.3d 148, 149 (3d Dept. 2014), leave to appeal den., 26 N.Y.3d 902 (2015); Stanley, 16 N.Y.S.3d at 901.

39. The issue before this Court, as it is in any habeas corpus action, is whether Beulah, Minnie, and Karen may be legally detained at all.

40. Even if Respondents were violating animal welfare statutes, habeas corpus remains available, as alternative remedies do not alter one’s ability to bring the writ. In re Jonathan M., 255 Conn. 208, 221 (2001); Weidenbacher v. Duclos, 234 Conn. 51, 64-65 (1995).

41. The determination of legal personhood is a matter for common law adjudication and is not a biological question. Craig v. Driscoll, 262 Conn. 312, 330 n.15 (2003); Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d 194, 201-202 (1972).

42. As public policy determines personhood, and as the writ of habeas corpus in Connecticut is solely a common law remedy, it is for the courts alone to decide whether Beulah, Minnie, and Karen are “persons” for purposes of the common law of habeas corpus. E.g., Craig, 262 Conn. at 330 n.15.

43. Beulah’s, Minnie’s, and Karen’s imprisonment and deprivation of bodily liberty by Respondents is unlawful under the common law, pursuant to which all persons are presumed free absent positive law. Somerset, supra.

44. The fact this Petition does not seek the immediate production of Beulah, Minnie, and Karen to the Court or placement in a temporary home and does not then seek their ultimate release into the wild or onto the streets of Connecticut but rather into the care of a sanctuary does not preclude them from habeas corpus relief. See Dart v. Mecum, 19 Conn. Supp. 428, 434 (Super. Ct. 1955); Buster v. Bonzagni, 1990 WL 272742, at *2 (Conn. Super. Ct. Apr. 5, 1990) aff'd sub Comm'r of Correction, 26 Conn. App. 48 (1991).

45. Beulah, Minnie and Karen are beneficiaries of an inter vivos trust created by the NhRP pursuant to C.G.S.A. § 45a-489a for the purpose of their care and maintenance once they are released from Respondents’ unlawful custody as directed by this Court and are therefore already “persons” for that purpose as only “persons” may be trust beneficiaries. RESTATEMENT (THIRD) OF TRUSTS § 43 Persons Who May Be Beneficiaries (2003); RESTATEMENT (THIRD) OF TRUSTS § 47 (Tentative Draft No. 2, approved 1999); RESTATEMENT (SECOND) OF TRUSTS § 124 (1959); Kate McEvoy, “§ 2:16. Pet trusts,” 20 CONN. PRAC., CONN. ELDER LAW § 2:16 (2014 ed.). A true and correct copy of the trust is attached hereto as Exhibit 1.

JURISDICTION AND STANDING

46. This Court has jurisdiction over Beulah, Minnie, and Karen, as they are owned by, and in the custody of, the Connecticut Respondents upon whom service of process will be delivered in Connecticut, even if one or more elephants are temporarily out of state. See C.G.S.A. § 52–466(a).

47. Connecticut courts have jurisdiction to issue writs of habeas corpus even on behalf of petitioners located outside of Connecticut so long as they remain in the custody of a Connecticut respondent. See Wyman v. Commissioner of Correction, 86 Conn. App. 98, 101 (2004); Hickey v. Comm'r of Correction, 82 Conn. App. 25, 31-32, 34, 36 (2004), app. dism., 274 Conn. 553 (2005). See also Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 495 (1973); Peyton v. Rowe, 391 U.S. 54, 58 (1968); Paul D. Halliday, Habeas Corpus: From England to Empire 42–43 (2010).

48. The NhRP has standing to bring this Petition both under the common law and the governing procedural statutes. Petitions may be brought by the corpus, the prisoner himself, or by another on behalf of the detained person even if she and the detainee are strangers. E.g., Jackson v. Bulloch, 12 Conn. 38 (1837); Rodd v. Norwich State Hosp., 5 Conn. Supp. 360, 360 (Super. Ct. 1937); Moye v. Warden, 2009 WL 3839292, at *2 n.1 (Conn. Super. 2009); Suarez v. Warden-Chesire, 2001 WL 291057, at *2 (Conn. Super. 2001); Lemmon v. People, 20 N.Y. 562 (1860); Nonhuman Rights Project, Inc. ex rel. Tommy v. Lavery, 152 A.D.3d 73, 75 n.1 (1^st Dept. 2017) (“Tommy”); Lavery, 124 A.D.3d at 150-53; Stanley, 16 N.Y.S.3d at 905; Somerset, Lofft 1, 98 Eng. Rep. 499.

49. Connecticut procedural statutes continue the common law tradition of permitting unrelated third parties to file habeas petitions. Conn. Practice Book § 23-40(a); C.G.S.A. § 52- 466(a); C.G.S.A. § 52-466(b).

STATEMENT PURSUANT TO PRACTICE BOOK § 23-22

50. Upon the NhRP’s best knowledge and belief, the cause or pretense of Beulah’s, Minnie’s, and Karen’s imprisonment is that they are owned by, and being used for, entertainment and profit by the Respondents in such a manner that they are deprived of their autonomy and consequently their ability to choose how to live their emotionally, socially, and cognitively complex lives. They are trucked from place-to-place. They are forced to give public performances, do tricks, and give rides to members of the public at such places as county fairs under fear of being struck with bullhooks. Upon information and belief, they are rented out for private use in weddings and other private events. One elephant was forced into the Cathedral of St. John the Divine in New York City. The Respondents have been frequently cited for violations of the Federal Animal Welfare Act for their treatment of the elephants in their custody.

51. While this Petition challenges neither the conditions of their confinement nor Respondents’ treatment of the elephants, but rather the fact of their detention itself, the deplorable conditions of Beulah’s, Minnie’s, and Karen’s confinement underscore the need for immediate relief and the degree to which their bodily liberty and autonomy are impaired.

52. No previous application for the writ of habeas corpus asked herein has been made.

53. No appeal has been taken from any order by virtue of which Beulah, Minnie, and Karen are detained.

COUNT 1

54. Attached are the following affidavits, including four affidavits from five of the world’s most renowned experts on the cognitive abilities of elephants (“Expert Affidavits”).

These affidavits include:

(a) Affidavit of Kevin R. Schneider, Esq.

(b) Joint Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D.

(c) Affidavit of Joyce Poole, Ph.D.

(d) Affidavit of Karen McComb, Ph.D.

(e) Affidavit of Cynthia Moss

(f) Affidavit of Ed Stewart

55. Expert Affidavits (b) through (e) demonstrate that elephants such as Beulah, Minnie, and Karen possess complex cognitive abilities sufficient for common law personhood and the common law right to bodily liberty, as a matter of common law liberty, equality, or both under Connecticut common law. These include: autonomy; empathy; self-awareness; self-determination; theory of mind (awareness others have minds); insight; working memory, and an extensive long-term memory that allows them to accumulate social knowledge; the ability to act intentionally and in a goal-oriented manner, and to detect animacy and goal directedness in others; to understand the physical competence and emotional state of others; imitate, including vocal imitation; point and understand pointing; engage in true teaching (taking the pupil’s lack of knowledge into account and actively showing them what to do); cooperate and build coalitions;14 cooperative problem-solving, innovative problem-solving, and behavioral flexibility; understand causation; intentional communication, including vocalizations to share knowledge and information with others in a manner similar to humans; ostensive behavior that emphasizes the importance of a particular communication; wide variety of gestures, signals, and postures; use of specific calls and gestures to plan and discuss a course of action, adjust their plan according to their assessment of risk, and execute the plan in a coordinated manner; complex learning and categorization abilities, and; an awareness of and response to death, including grieving behaviors.

56. African and Asian elephants share numerous complex cognitive abilities with humans, such as self-awareness, empathy, awareness of death, intentional communication, learning, memory, and ategorization abilities.5

57. Many of these capacities have been considered — erroneously — as uniquely human; each is a component of autonomy.6 African and Asian elephants are autonomous, as they exhibit “self-determined behaviour that is based on freedom of choice. As a psychological concept it implies that the individual is directing their behaviour based on some non-observable, internal cognitive process, rather than simply responding reflexively.”7

58. Elephants possess the largest absolute brain of any land animal.8 Even relative to their body sizes, elephant brains are large.9

59. An encephalization quotient (“EQ”) of 1.0 means a brain is exactly the size expected for that body size; values greater than 1.0 indicate a larger brain than expected for that body size. (Id.).10

60. Elephants have an EQ of between 1.3 and 2.3 (varying between sex and African and Asian species).11 This means an elephant’s brain can be more than twice as large as is expected for an animal of its size.12 These EQ values are similar to those of the great apes, with whom elephants have not shared a common ancestor for almost 100 million years.13

60. A large brain allows greater cognitive skill and behavioral flexibility.14 Typically, mammals are born with brains weighing up to 90% of the adult weight.15 This figure drops to about 50% for chimpanzees.16 At birth, human brains weigh only about 27% of the adult brain weight and increase in size over a prolonged childhood period.17 This lengthy period of brain development (termed “developmental delay”) is a key feature of human brain evolution.18 It provides a longer period in which the brain may be shaped by experience and learning, and plays a role in the emergence of complex cognitive abilities such as self-awareness, creativity, forward planning, decision making and social interaction.19 Elephant brains at birth weigh only about 35% of their adult weight, and elephants accordingly undergo a similarly protracted period of growth, development and learning.20 This similar developmental delay in the elephant brain is likewise associated with the emergence of analogous cognitive abilities.21

61. Physical similarities between human and elephant brains occur in areas that link to the capacities necessary for autonomy and self-awareness.22 Elephant and human brains share deep and complex foldings of the cerebral cortex, large parietal and temporal lobes, and a large cerebellum.23 The temporal and parietal lobes of the cerebral cortex manage communication, perception, and recognition and comprehension of physical actions, while the cerebellum is involved in planning, empathy, and predicting and understanding the actions of others.24

62. Elephant brains hold nearly as many cortical neurons as do human brains, and a much greater number than do chimpanzees or bottlenose dolphins.25 Elephants’ pyramidal neurons — the class of neurons found in the cerebral cortex, particularly the pre-frontal cortex, which is the brain area that controls “executive functions” — are larger than in humans and most other species.26 The term “executive function” refers to controlling operations, such as paying attention, inhibiting inappropriate responses, and deciding how to use memory search. These abilities develop late in human infancy and are often impaired in dementia. The degree of complexity of pyramidal neurons is linked to cognitive ability, with more complex connections between pyramidal neurons being associated with increased cognitive capabilities.27 Elephant pyramidal neurons have a large number of connections with other neurons for receiving and sending signals, known as a dendritic tree.28

63. Elephants, like humans, great apes, and some cetaceans, possess von Economo neurons, or spindle cells, the so-called “air-traffic controllers for emotions,” in the anterior cingulate, fronto-insular, and dorsolateral prefrontal cortex areas of the brain.29 In humans, these cortical areas are involved, among other things, with the processing of complex social information, emotional learning and empathy, planning and decision-making, and self-awareness and self-control.30 The presence of spindle cells in the same brain locations in elephants and humans strongly implies that these higher-order brain functions, which are the building blocks of autonomous, self-determined behavior, are common to both species.31

64. Elephants have extensive and long-lasting memories.32 McComb et al. (2000), using experimental playback of long-distance contact calls in Amboseli National Park, Kenya, showed that African elephants remember and recognize the voices of at least 100 other elephants.33 Each adult female elephant tested was familiar with the contact-call vocalizations of individuals from an average of 14 families in the population.34 When the calls came from the test elephants’ own family, they contact-called in response and approached the location of the loudspeaker; when they were from another non-related but familiar family, one that had been shown to have a high association index with the test group, they listened but remained relaxed.35 However, when a test group heard unfamiliar contact calls from groups with a low association index with the test group, the elephants bunched together and retreated from the area.36

65. McComb et al. has demonstrated that this social knowledge accumulates with age, with older females having the best knowledge of the contact calls of other family groups, and that older females are better leaders than younger, with more appropriate decision-making in response to potential threats (in this case, in the form of hearing lion roars).37 Younger matriarchs under-reacted to hearing roars from male lions, elephants, most dangerous predators.38 Sensitivity to the roars of male lions increased with increasing matriarch age, with the oldest, most experienced females showing the strongest response to this danger.39 These studies show that elephants continue to learn and remember information about their environments throughout their lives, and this accrual of knowledge allows them to make better decisions and better lead their families as they age.40

66. Further demonstration of elephants’ long-term memory emerges from data on their movement patterns.41 African elephants move over very large distances in their search for food and water.42 Leggett (2006) used GPS collars to track the movements of elephants living in the Namib Desert, with one group traveling over 600 km in five months.43 Viljoen (1989) showed that elephants in the same region visited water holes approximately every four days, though some were more than 60 km apart.44

67. Elephants inhabiting the deserts of Namibia and Mali may travel hundreds of kilometers to visit remote water sources shortly after the onset of a period of rainfall, sometimes along routes that have not been used for many years.45 These remarkable feats suggest exceptional cognitive mapping skills that rely upon the long-term memories of older individuals who may have traveled that same path decades earlier.46 Thus, family groups headed by older matriarchs are better able to survive periods of drought.47 These older matriarchs lead their families over larger areas during droughts than families headed by younger matriarchs, again drawing on their accrued knowledge, this time about the locations of permanent, droughtresistant sources of food and water, to better lead and protect their families.48

68. Studies reveal that long-term memories, and the decision-making mechanisms that rely on this knowledge, are severely disrupted in elephants who have experienced trauma or extreme disruption due to “management” practices initiated by humans.49 Shannon et al. (2013) demonstrated that South African elephants who experienced trauma decades earlier showed significantly reduced social knowledge.50 As a result of archaic culling practices, these elephants had been forcibly separated from family members and subsequently taken to new locations.51 Two decades later, their social knowledge and skills and decision-making abilities were impoverished compared to an undisturbed Kenyan population.52 Disrupting elephants’ natural way of life has substantial negative impacts on their knowledge and decision-making abilities.53

69. Elephants demonstrate advanced working memory skills.54 Working memory is the ability to temporarily store, recall, manipulate and coordinate items from memory.55 Working memory directs one’s attention to relevant information, utilized in reasoning, planning, coordination, and execution of cognitive processes through a “central executive.”56 Adult human working memory has a capacity of around seven items.57 When experiments were conducted with wild elephants in Kenya in which the locations of fresh urine samples from related or unrelated elephants were manipulated, the elephants responded by detecting urine from known individuals in surprising locations, thereby demonstrating the ability continually to track the locations of at least 17 family members in relation to themselves, as either absent, present in front of self, or present behind self.58 This remarkable ability to hold in mind and regularly update information about the locations and movements of a large number of family members is best explained by the fact that elephants possess an unusually large working memory capacity that is much larger than that of humans.59

70. Elephants display a sophisticated categorization of their environment on par with humans.60 Bates, Byrne, Poole, and Moss experimentally presented the elephants of Amboseli National Park, Kenya with garments that gave olfactory or visual information about their human wearers, either Maasai warriors who traditionally attack and spear elephants as part of their rite of passage, or Kamba men who are agriculturalists and traditionally pose little threat to elephants.61 In the first experiment, the only thing that differed between the cloths was the smell, derived from the ethnicity and/or lifestyle of the wearers.62 The elephants were significantly more likely to run away when they sniffed cloths worn by Maasai men than those worn by Kamba men or no one at all. (See “Video 7” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit K”).63

71. In a second experiment, they presented the elephants with two cloths that had not been worn by anyone; one was white (a neutral stimulus) and the other red, the color ritually worn by Maasai warriors.64 With access only to these visual cues, the elephants showed significantly greater, sometimes aggressive, reactions to red garments than white.65 They concluded that elephants are able to ategorize a single species (humans) into sub-classes (i.e., “dangerous” or “low risk”) based on either olfactory or visual cues alone.66

72. McComb et al. further demonstrated that these same elephants distinguish human groups based on voices.67 The elephants reacted differently, and appropriately, depending on whether they heard Maasai or Kamba men speaking, and whether the speakers were male Maasai versus female Maasai, who also pose no threat.68 Scent, sounds and visual signs associated specifically with Maasai men are categorized as “dangerous,” while neutral signals are attended to but categorized as “low risk.”69 These sophisticated, multi-modal categorization skills may be exceptional among non-human animals and demonstrate elephants’ acute sensitivity to the human world and how they monitor human behavior and learn to recognize when we might cause them harm.70

73. Human speech and language reflect autonomous thinking and intentional behavior.71 Similarly, elephants vocalize to share knowledge and information.72 Male elephants primarily communicate about their sexual status, rank and identity, whereas females and dependents emphasize and reinforce their social units.73 Call types are separated into those produced by the larynx (such as “rumbles”) and calls produced by the trunk (such as “trumpets”), with different calls in each category used in different contexts.74 Field experiments have shown that African elephants distinguish between call types. For example, such contact calls as “rumbles” may travel kilometers and maintain associations between elephants, or “oestrus rumbles” may occur after a female has copulated, and these call types elicit different responses in listeners.75

74. Elephant vocalizations are not merely reflexive; they have distinct meanings to listeners and communicate in a manner similar to the way humans use language.76 Elephants display more than two hundred gestures, signals and postures that they use to communicate information to their audience.77 Such signals are adopted in many contexts, such as aggressive, sexual or socially integrative situations, are well-defined, carry a specific meaning both to the actor and recipient, result in predictable responses from the audience, and together demonstrate intentional and purposeful communication intended to share information and/or alter the others’ behavior to fit their own will.78

75. Elephants use specific calls and gestures to plan and discuss a course of action.79 These may be to respond to a threat through a group retreating or mobbing action (including celebration of successful efforts), or planning and discussing where, when and how to move to a new location.80 In group-defensive situations, elephants respond with highly coordinated behaviour, both rapidly and predictably, to specific calls uttered and particular gestures exhibited by group members.81 These calls and gestures carry specific meanings not only to elephant listeners, but to experienced human listeners as well.82 The rapid, predictable and collective response of elephants to these calls and gestures indicates that elephants have the capacity to understand the goals and intentions of the signalling individual.83

76. Elephant group defensive behavior is highly evolved and involves a range of different tactical maneuvers adopted by different elephants.84 For example, matriarch Provocadora’s contemplation of Poole’s team through listening and “j-sniffing,” followed by her purposeful “perpendicular-walk” (in relation to Poole’s team) toward her family and her “earflap-slide” clearly communicated that her family should begin a “group-advance” upon Poole’s team.85 This particular elephant attack is a powerful example of elephants’ use of empathy, coalition and cooperation.86 Provocadora’s instigation of the “group-advance” led to a two-and-a-half minute “group-charge” in which the three other large adult females of the 36-member family took turns leading the charge, passing the baton, in a sense, from one to the next.87 Oncethey succeeded in their goal of chasing Poole’s team away, they celebrated their victory by “high-fiving” with their trunks and engaging in an “end-zone-dance.”88 “High-fiving” is also typically used to initiate a coalition and is both preceded by and associated with other specific gestures and calls that lead to very goal oriented collective behavior.89

77. Ostensive communication refers to the way humans use particular behavior, such as tone of speech, eye contact, and physical contact, to emphasize that a particular communication is important.90 Lead elephants in family groups use ostensive communication frequently as a way to say, “Heads up – I am about to do something that you should pay attention to.”91

78. In planning and communicating intentions regarding a movement, elephants use both vocal and gestural communication.92 For example, Poole has observed that a member of a family will use the axis of her body to point in the direction she wishes to go and then vocalize, every couple of minutes, with a specific call known as a “let’s-go” rumble, “I want to go this  way, let’s go together.”93 The elephant will also use intention gestures — such as “footswinging” — to indicate her intention to move.94 Such a call may be successful or unsuccessful at moving the group or may lead to a 45-minute or longer discussion (a series of rumble exchanges known as “cadenced rumbles”) that researchers interpret as negotiation.95 Sometimes such negotiation leads to disagreement that may result in the group splitting and going in different directions for a period of time.96 In situations where the security of the group is at stake, such as when movement is planned through or near human settlement, all group members focus on the matriarch’s decision.97 So while “let’s go” rumbles are uttered, others adopt a “waiting” posture until the matriarch, after much “listening,” “j-sniffing,” and “monitoring,” decides it is safe to proceed, where upon they bunch together and move purposefully, and at a fast pace in a “group-march.”98

79. Elephants typically move through dangerous habitat and nighttime hours at high speed in a clearly goal-oriented manner known as “streaking,” which has been described and documented through the movements of elephants wearing satellite tracking collars.99 The many different signals — calls, postures, gestures and behaviors elephants use to contemplate and initiate such movement (including “ear-flap,” “ear-flap-slide”) — are clearly understood by other elephants (just as they can be understood after long-term study by human observers), mean very specific things, and indicate that elephants: 1) have a particular plan which they can communicate with others, 2) can adjust their plan according to their immediate assessment of risk or opportunity, and 3) can communicate and execute the plan in a coordinated manner.

80. Elephants can vocally imitate sounds they hear, from the engines of passing trucks to the commands of human zookeepers.101 Imitating another’s behavior is demonstrative of a sense of self, as it is necessary to understand how one’s own behavior relates to the behavior of others.102 African elephants recognize the importance of visual attentiveness on the part of an intended recipient, elephant or human, and of gestural communication, which further demonstrates that elephants’ gestural communications are intentional and purposeful.103 This ability to understand the visual attentiveness and perspective of others is crucial for empathy, mental-state understanding, and “theory of mind,” the ability to mentally represent and think about the knowledge, beliefs and emotional states of others, while recognizing that these can be distinct from your own knowledge, beliefs and emotions.104

81. As do humans, Asian elephants exhibit “mirror self-recognition” (MSR) using Gallup’s classic “mark test.”105 MSR is the ability to recognize a reflection in the mirror as oneself, while the mark test involves surreptitiously placing a colored mark on an individual’s forehead that she cannot see or be aware of without the aid of a mirror.106 If the individual uses the mirror to investigate the mark, the individual must recognize the reflection as herself. (See “Video 1,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit D”).107

82. MSR is significant because it is a key identifier of self-awareness.108 Self-awareness is intimately related to autobiographical memory in humans and is central to autonomy and being able to direct one’s own behavior to achieve personal goals and desires.109 By demonstrating they can recognize themselves in a mirror, elephants must be holding a mental representation of themselves from another perspective and thus be aware that they are a separate entity from others.110

83. One who understands the concept of dying and death must possess a sense of self.111 Both chimpanzees and elephants demonstrate an awareness of death by reacting to dead family or group members.112 Having a mental representation of the self, which is a pre-requisite for mirror-self recognition, likely confers an ability to comprehend death.113

84. Wild African elephants have been shown experimentally to be more interested in the bones of dead elephants than the bones of other animals. (See “Video 2,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit E”).114 They have frequently been observed using their tusks, trunk or feet to attempt to lift sick, dying or dead individuals.115 Although they do not give up trying to lift or elicit movement from a dead body immediately, elephants appear to realize that once dead, the carcass can no longer be helped; and instead they engage in more “mournful” or “grief-stricken” behavior, such as standing guard over the body with dejected demeanor and protecting it from predators. (See “Photographs,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit F”).116

85. Wild African elephants have been observed to cover the bodies of their dead with dirt and vegetation.117 Mothers who lose a calf may remain with the calf’s body for an extended period, but do not behave towards the body as they would a live calf.118 Indeed, the general demeanor of elephants attending to a dead elephant is one of grief and compassion, with slow movements and few vocalizations.119 These behaviors are akin to human responses to the death of a close relative or friend and demonstrate that elephants possess some understanding of life and the permanence of death. (See “Photographs,” attached to the Affidavit of Karen McComb, Ph.D. on CD as “Exhibit E”).120

86. Elephants’ interest in the bodies, carcasses and bones of elephants who have passed is so marked that when one has died, trails to the site of death become worn into the ground by the repeated visits of many elephants over days, weeks, months, even years.121 The accumulation of dung around the site attests to the extended time that visiting elephants spend touching and contemplating the bones.122 Poole observed that, over years, the bones may become scattered over tens or hundreds of square meters as elephants pick up the bones and carry them away.123 The tusks are of particular interest and may be carried and deposited many hundreds of meters from the site of death.124

87. The capacity for mentally representing the self as an individual entity has been linked to general empathic abilities.125 Empathy is defined as identifying with and understanding another’s experiences or feelings by relating personally to their situation.126

88. Empathy is an important component of human consciousness and autonomy and is a cornerstone of normal social interaction.127 It requires modeling the emotional states and desired goals that influence others’ behavior both in the past and future, and using this information to plan one’s own actions; empathy is only possible if one can adopt or imagine another’s perspective, and attribute emotions to that other individual.128 Thus, empathy is a component of “theory of mind.”129

89. Elephants frequently display empathy in the form of protection, comfort and consolation, as well as by actively helping those in difficulty, such as assisting injured individuals to stand and walk, or helping calves out of rivers or ditches with steep banks. (See “Video 3,” attached to the Affidavit of Karen McComb, Ph.D. on CD as “Exhibit F”).130 Elephants have been seen to react when anticipating the pain of others by wincing when a nearby elephant stretched her trunk toward a live wire, and have been observed feeding those unable to use their own trunks to eat and attempting to feed those who have just died.131

90. In an analysis of behavioural data collected from wild African elephants over a 40-year continuous field study, Bates and colleagues concluded that as well as possessing their own intentions, elephants can diagnose animacy and goal directedness in others, understand the physical competence and emotional state of others, and attribute goals and mental states (intentions) to others.132

91. This is borne out by examples such as: IB family is crossing river. Infant struggles to climb out of bank after its mother. An adult female [not the mother] is standing next to calf and moves closer as the infant struggles. Female does not push calf out with its trunk, but digs her tusks into the mud behind the calf’s front right leg which acts to provide some anchorage for the calf, who then scrambles up and out and rejoins mother. At 11.10ish Ella gives a “lets go” rumble as she moves further down the swamp . . . At 11.19 Ella goes into the swamp. The entire group is in the swamp except Elspeth and her calf [<1 year] and Eudora [Elspeth’s mother]. At 11.25 Eudora appears to “lead” Elspeth and the calf to a good place to enter the swamp — the only place where there is no mud. (See “Video 3,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit G”).133

92. In addition to the examples analyzed in Bates et al., Poole observed two adult females rush to the side of a third female who had just given birth, back into her, and press their bodies to her in what appeared to be a spontaneous attempt to prevent injury to the newborn.134 In describing the situation, Poole wrote:

The elephants’ sounds [relating to the birth] also attracted the attention of several males including young and inexperienced, Ramon, who, picking up on the interesting smells of the mother [Ella], mounted her, his clumsy body and feet poised above the newborn. Matriarch Echo and her adult daughter Erin, rushed to Ella’s side and, I believe, purposefully backed into her in what appeared to be an attempt to prevent the male from landing on the baby when he dismounted.135

93. Such examples demonstrate that the acting elephant(s) (the adult female in the first example, Eudora in the second, and Erin and Echo in the third) were able to understand the intentions or situation of the other (the calf in the first case, Elspeth in the second, Ella’s newborn and the male in the third), and could adjust their own behavior to counteract the problem being faced by the other.136

94. In raw footage Poole acquired of elephant behavior filmed by her brother in the Mara, Kenya, an “allo-mother” (an elephant who cares for an infant and is not the infant’s mother or father) moves a log from under the head of an infant in what appears to be an effort to make him more comfortable. (See “Video 1,” attached to the Affidavit of Joyce Poole, Ph.D. on CD as “Exhibit C”).137 In a further example of the ability to understand goal directedness of others, elephants appear to understand that vehicles drive on roads or tracks and they further appear to know where these tracks lead.138 In Gorongosa, Mozambique, where elephants exhibit a culture of aggression toward humans, charging, chasing and attacking vehicles, adult females anticipate the direction the vehicle will go and attempt to cut it off by taking shortcuts before the vehicle has begun to turn.139

95. Empathic behavior begins early in elephants. In humans, rudimentary sympathy for others in distress has been recorded in infants as young as 10 months old; young elephants similarly exhibit sympathetic behavior.140 For example, during fieldwork in the Maasai Mara in 2011, Poole filmed a mother elephant using her trunk to assist her one-year-old female calf up a steep bank. Once the calf was safely up the bank she turned around to face her five-year-old sister, who was also having difficulties getting up the bank. As the older calf struggled to clamber up the bank the younger calf approached her and first touched her mouth (a gesture of reassurance among family members) and then reached her trunk out to touch the leg that had been having difficulty. Only when her sibling was safely up the bank did the calf turn to follow her mother. (See “Video 2,” attached to the Affidavit of Joyce Poole, Ph.D. on CD as “Exhibit D”).141

94 [sic]. Captive African elephants attribute intentions to others, as they follow and understand human pointing gestures.142 The elephants understood that the human experimenter was pointing to communicate information to them about the location of a hidden object. (See “Video 4,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit H”).143 Attributing intentions and understanding another’s reference point is central to both empathy and “theory of mind.”144

95[sic]. There is evidence of “natural pedagogy,” or true teaching — whereby a teacher takes into account the knowledge states of the learner as she passes on relevant information — in elephants. Bates, Byrne, and Moss’s analysis of simulated “oestrus behaviours”145 in African elephants — whereby a non-cycling, sexually experienced older female will simulate the visual signals of being sexually receptive, even though she is not ready to mate or breed again — demonstrates that these knowledgeable females can adopt false “oestrus behaviours” to demonstrate to naïve young females how to attract and respond appropriately to suitable males.146 The experienced females may be taking the youngster’s lack of knowledge into account and actively showing them what to do — a possible example of true teaching as it is defined in humans.147 This evidence, coupled with the data showing they understand the ostensive cues in human pointing, suggests that elephants understand the intentions and knowledge states (minds) of others.148

96. Coalitions and cooperation have been frequently documented in wild African elephants, particularly to defend family members or close allies from (potential) attacks by outsiders, such as when one family group tries to “kidnap” a calf from an unrelated family.149 These behaviors are generally preceded by gestural and vocal signals, typically given by the matriarch and acted upon by family members, and are based on one elephant understanding the emotions and goals of a coalition partner.150

97. Cooperation is evident in captive Asian elephants, who demonstrate they can work together in pairs to obtain a reward, but also understand the pointlessness of attempting the task if their partner was not present or could not access the equipment. (See “Video 5,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit I”).151 Problem-solving and working together to achieve a collectively desired outcome involve mentally representing both a goal and the sequence of behaviors that is required to achieve that goal; it is based on (at the very least) short-term action planning.152

98. Wild elephants have frequently been observed engaging in such cooperative problem-solving as retrieving calves kidnapped by other groups, helping calves out of steep, muddy river banks (see “Video 3,” attached to the Affidavit of Karen McComb, Ph.D. on CD as “Exhibit F”), rescuing a calf attacked by a lion (acoustic recording calling to elicit help from others), and navigating through human-dominated landscapes to reach a desired destination such as a habitat, salt-lick, or waterhole.153 These behaviors demonstrate the purposeful and wellcoordinated social system of elephants and show that elephants can collectively hold specific aims in mind, then work together to achieve those goals.154 Such intentional, goal-directed action forms the foundation of independent agency, self-determination, and autonomy.155

99. Elephants also show innovative problem-solving in experimental tests of insight, defined as the “a-ha” moment when a solution to a problem suddenly becomes clear.156 A juvenile male Asian elephant demonstrated such a spontaneous action by moving a plastic cube and standing on it to obtain previously out-of-reach food.157 After solving this problem once, he showed flexibility and generalization of the technique to other similar problems by using the same cube in different situations, or different objects in place of the cube when it was unavailable. (See “Video 6,” attached to the Affidavit of Lucy Bates, Ph.D. and Richard Byrne, Ph.D. on CD as “Exhibit J”).158 This experiment demonstrates that elephants can choose an appropriate action and incorporate it into a sequence of behavior to achieve a goal they kept in mind throughout the process.159

100. Asian elephants demonstrate the ability to understand goal-directed behavior.160 When presented with food that was out of reach, but with some bits resting on a tray that could be pulled within reach, elephants learned to pull only those trays baited with food.161 Success in this kind of “means-end” task demonstrates causal knowledge, which requires understanding not just that two events are associated with each other, but that some mediating force connects and affects the two which may be used to predict and control events.162 Understanding causation and inferring object relations may be related to understanding psychological causation, which is appreciation that others are animate beings who generate their own behavior and have mental states (e.g., intentions).163

101. PAWS is a 501(c)(3) non-profit organization incorporated in 1984. It maintains three captive wildlife sanctuaries: the original 30-acre PAWS sanctuary in Galt, California; the 100-acre Amanda Blake Memorial Wildlife Refuge in Herald, California; and the 2,300-acre ARK 2000 sanctuary in San Andreas, California, that are home to elephants, bears, and big cats. The Galt sanctuary was the first sanctuary in the country equipped to care for elephants.164 PAWS sanctuaries provide rescued animals with specially designed peaceful, natural habitats where they have the freedom to engage in natural autonomous behaviors that are as close to their native habitat as can be found in North America.

102. The mission of PAWS is to protect performing wild animals, provide sanctuary to abused, abandoned or retired captive wildlife, promote the best standards of care for all captive wildlife, preserve wild species and their habitat, and educate the public about captive wild animals.165

103. The ARK 2000 sanctuary is located near the Sierra Nevada Mountains in San Andreas, California, and has five elephant barns, one for female Asian elephants, one for female African elephants, and three for bull elephants. The property encompasses 2,300 acres of rolling foothills with varied natural terrain. Habitats include natural grasses, trees, lakes and pools in which the elephants may bathe. The Asian and African barns are each 20,000 square feet in size. Barns are equipped with heaters, hydraulic gates, restraint devices for veterinary procedures, heated and padded concrete floors, dirt floors, spacious sleeping stalls and pipe hallways for introduction and socialization of new elephants. The African barn has an indoor therapy pool. The Asian elephant barn contains dirt-floor sleeping stalls specially designed for older elephants with foot and joint problems.166

104. In support of this Petition, the NhRP has filed its Memorandum of Law in Support of Verified Petition for Common Law Writ of Habeas Corpus as well as an Appendix of Exhibits in Support of Verified Petition for Common Law Writ of Habeas Corpus which contains the exhibits referred to in this Petition. The Petitioner’s proposed Writ of Habeas Corpus is attached hereto.

DEMAND

WHEREFORE, Petitioner respectfully requests the following relief:

A. Issuance of the Writ of Habeas Corpus directing the Respondents to file a return to the Petition pursuant to Connecticut Practice Book § 23-21 et seq. including, inter alia, setting forth the facts claimed to justify the detention and denial of liberty of Beulah, Minnie, and Karen, three illegally confined elephants in Respondents’ custody;

B. Upon a determination that Beulah, Minnie, and Karen are being unlawfully denied their liberty, detained and imprisoned, ordering their immediate release from Respondents’ custody and illegal confinement forthwith to PAWS;

C. Awarding Petitioner NhRP its costs and disbursements in connection with this matter; and

D. Granting such other and further relief as this Court deems just and proper.

THE PETITIONER,

THE NONHUMAN RIGHTS PROJECT, INC.

BY:__________________________________________

David Zabel, Esq.

Cohen and Wolf, P.C.

1115 Broad Street

Bridgeport, CT 06604

Tel: 203-368-0211

Fax: 203-394-9901

Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

Juris No. 010032

Steven M. Wise, Esq.

Subject to pro hac vice admission

Attorney for Petitioner

5195 NW 112th Terrace

Coral Springs, Florida 33076

(954) 648-9864

This email address is being protected from spambots. You need JavaScript enabled to view it.

Footnotes

1 Since December 2013, the NhRP has brought numerous habeas corpus petitions on behalf of captive chimpanzees in New York State, and these suits have been the subject of thousands of legal commentaries, national and international news articles, radio and television programs, and podcasts. For example, there were at least 2,095 articles published on the issue of whether a chimpanzee could have the right to a common law writ of habeas corpus in the six months between March and September 2017 alone. These outlets include, in the US, NBC News, Wall Street Journal, Washington Post, Associated Press, Law360, Gizmodo, Fox News, and Salon, and around the world, the Sydney Morning Herald, Kremlin Express, Yahoo Japan, Mexico’s Entrelíneas, and India’s Economic Times. The collective potential reach of this media coverage is approximately 1.4 billion people, according to the media monitoring service Meltwater. A spreadsheet containing the full list of 2,095 media items covering this case is available for download at: https://www.nonhumanrights.org/content/uploads/Media-Coverage-Tommy-KikoAppellate-Hearing-Raw-Data.csv (last accessed November 10, 2017).

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[Other footnotes omitted.]