Cocaine Hippos, Monkey Copyrights, and a Horse Named Justice: The Debate Over Animal Personhood
In January, six justices of the Colorado Supreme Court unanimously ruled that five elderly African elephants were not people.
That may not sound like an issue that needs six justices to resolve, but courts around the country have found themselves handling such questions.
The Colorado Supreme Court did not hear from the elephants directly. They heard from the Nonhuman Rights Project, which filed a habeas corpus petition on behalf of the pachyderms, arguing that their confinement in a Colorado Springs zoo violated their right to bodily liberty.
Over the past decade, the Nonhuman Rights Project and several other animal rights groups have waged a novel campaign to extend legal “personhood” to animals, which would allow them to be plaintiffs in civil lawsuits. Many of these cases have attempted to free large, charismatic animals such as elephants and chimpanzees from zoos under the great writ of habeas corpus, which allows individuals to challenge unlawful imprisonment.
Other courts around the world have recognized fundamental rights for animals. In Pakistan, the Islamabad High Court declared in 2020, in the case of a shackled and mistreated elephant, that it “is a right of each animal, a living being, to live in an environment that meets the latter’s behavioral, social and physiological needs.” In 2022, Ecuador’s Constitutional Court ruled that animals were subject to “rights of nature” enshrined in the country’s constitution. And last year, indigenous leaders of New Zealand, Tahiti, and the Cook Islands signed a treaty recognizing whales as legal persons.
Critics scoff that this amounts to little more than absurdist lawfare and that legal recognition of animal personhood would almost certainly empower busybody environmentalists—and might not even improve conditions for the animals. There are also public pressure campaigns and existing legal avenues that could improve animal welfare without attempting to shift one of the bedrock principles of Western law.
But the question at the heart of these cases—whether a nonhuman entity can have a cognizable liberty interest—has surprisingly deep implications, not just for animals but for human freedom and flourishing. Research into artificial intelligence (AI) may eventually run into similar ethical considerations.
“There’s a lot of tension because I think that the law just hasn’t really caught up with our own sensibilities,” says Christopher Berry, executive director of the Nonhuman Rights Project. “Primarily courts are trying to police a boundary between humans and animals and not recognizing that things don’t always fall into a neat dichotomy.”
Pablo’s Cocaine Hippos
So far, the only animals that have ever been declared legal persons by a U.S. court in any limited sense are a pod of invasive hippopotamuses in Colombia that escaped from the estate of the cocaine cartel lord Pablo Escobar.
The animals are the descendants of four hippos that Escobar illegally imported in the 1980s. Unsurprisingly, after Escobar’s death no one wanted to claim responsibility for a bunch of full-grown hippos, so the animals were left to their own devices. They migrated to nearby rivers and began eating and reproducing.
After several decades, more than 150 gigantic, ill-tempered, territorial animals were tearing up local waterways. The Colombian government finally began developing plans to cull its rogue hippo population, but in 2020 a Colombian lawyer sued on behalf of the hippos, arguing they should be sterilized instead of euthanized.
The Animal Legal Defense Fund (ALDF), a California-based animal rights group, asked the U.S. District Court in Cincinnati to grant “interested persons” status to the hippos in order to depose two Ohio experts on wildlife sterilization to testify on their behalf. The judge granted the request.
This had no practical effect on the hippos’ legal status in either the U.S. or Colombia. Colombia’s Constitutional Court ruled in 2020 that a bear named Chucho did not possess fundamental rights and therefore could not invoke habeas corpus. But it was the closest thing to a win that animal rights groups could claim on the personhood front in the U.S.
“It’s a very small thing to give hippos the ability to depose these two experts, but it just opens the door a little bit that has always been closed,” says ALDF attorney Ariel Flint. “My hope is that in the future, judges will be more comfortable holding that door open for other animals because they won’t be the first ones to have to do it.”
As for the hippopotamuses, the sterilization plan was approved but proceeded slowly, because there aren’t many people with the steely nerves and know-how required to tranquilize and neuter a 5-ton bull hippo. Last year, a Colombian court ordered hunting of the animals to resume.
Persons and Things
Francis of Assisi, the Catholic saint said to have preached to birds and tamed a wolf, may have considered all of Animalia his brothers and sisters, but U.S. courts have strenuously rejected that proposition.
In legal philosophy, everything is either a person or a thing. A horse isn’t a person, so it’s a thing. Even if a horse could talk, even if it could do advanced algebra in front of a judge, it would be a thing, and the most protection a thing can have under the law is as a piece of property.
This was widely accepted back when animals were commonly understood to be commodities. But changing social mores have left many Americans feeling troubled by some of the implications.
Berry cites a 2013 case where the Texas Supreme Court ruled that an owner suing over the negligent death of his pet dog was entitled only to the fair market value of the dog and that pet owners could never recoup damages for emotional or noneconomic losses.
“What the Texas Supreme Court ended up admitting actually was that if you had a taxidermied dog that was a family heirloom, you could receive sentimental damages for that, but you could not receive anything beyond the market value for a family dog who was alive and was killed,” Berry says.
A beloved family pet is also property under the Fourth Amendment, protecting them from unreasonable government “seizures” (read: killings). This allows owners to sue when a police officer shoots their dog, but it turns an ugly experience into a bloodless abstraction.
In 2018, lawyers for the city of Detroit tried to argue that unlicensed dogs were “contraband” under the Fourth Amendment, meaning an owner couldn’t sue the police for shooting their pet, since owners don’t retain a possessory interest in illegal property.
The practical effect of the claim would be that a cop could summarily execute any unregistered dog he or she came across and the owners would have no recourse. Thankfully, the U.S. Court of Appeals for the 6th Circuit rejected that argument, writing that “just as the police cannot destroy every unlicensed car or gun on the spot, they cannot kill every unlicensed dog on the spot.”
The person-thing rule isn’t always strictly true, either. Animal rights activists are quick to point out that courts are willing to suspend disbelief in instances not involving animals.
As Mitt Romney said, “Corporations are people, my friend.” A corpor
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