Motion to reargue elephant case denied

Nonhuman Rights Project plans to appeal

TORRINGTON — The fate of three elephants in Goshen will continue to be contested, as the Nonhuman Rights Project plans to appeal after Judge James Bentivegna denied the group’s motion to reargue the case last week.

In December, Bentivegna dismissed the group’s initial petition for a writ of habeas corpus, which was based on the contention that given their cognitive abilities and sense of self, the animals should be considered autonomous beings and thus legal persons who cannot be detained under the law.

At the time, he ruled the Nonhuman Rights Project does not have standing to seek such a writ, that the court did not have subject matter jurisdiction, and that the case was “wholly frivolous on its face.”

In rejecting the petition, Bentivegna wrote at the time the group had no prior relationship with the animals, thus preventing it from having the needed “next friend” status to file the petition, and rejected the argument that the elephants should be granted the rights of legal personhood, finding there was no precedent to do so.

The Florida-based group then filed a motion to reargue the case in January, alleging Bentivegna had improperly dismissed the case.

It suggested Bentivegna had ignored precedent allowing strangers to file such petitions on the behalf of others who are detained, and if the court found a significant relationship was needed for “next friend” status, it should allowed to amend its petition to note that the

elephants have no such relationships.

The group said at the time Bentivegna had conflated a novel case with a frivolous one.

Bentivegna denied that motion on Feb. 27.

In his latest decision, he found the Nonhuman

Rights Project had not raised a controlling principle of law that ran contrary to the reasons that led him to dismiss the initial petition in December, and that amendments it proposed in the case did not give it “the possibility or probability of victory, meaning it is wholly frivolous on its face in legal terms.”

“Denial of the petition

did not rest exclusively on the petitioner’s lack of standing, but also on the legal conclusion that basis for the petition is not a constitutionally protected liberty, which is required in order to issue a writ of habeas corpus,” said Bentivegna. “Thus, even were this court to determine that the petitioner’s proposed amendments resolve the issue of standing, the resulting amended petition would still lack the possibility or probability of victory, constraining the court to deny it again.”

Nonhuman Rights Project President Stephen Wise said this week habeas petitions can be granted even if the right in question was not constitutionally-protected.

Bentivegna pointed to “Fuller vs. Commissioner of Correction” in his decision, which Wise said indicated a prisoner needed to point to a liberty under the due process clause of the Constitution

that was being denied to use a writ of habeas corpus.

However, Wise said common law provides a right to bodily liberty as well, which Bentivegna did not reference in his decision.

“If you are not a convicted prisoner, which neither you or I would be — nor are our three elephants ... you need not point to the Constitution,” said Wise. “You would simply point to the common law.”

Bentivegna was dutybound to consider the common law in his decision, as it was what the group was arguing, Wise said.

“We’re not claiming that the elephants have a right under the Constitution, of Connecticut or the United States or any other constitution or any statute to the bodily liberty that they’re being deprived of,” said Wise. “The only thing that we’re claiming is that the

three elephants have a common-law right to liberty that they’re being deprived of by being held captive by the Commerford Zoo.”

Wise said the group planned to appeal the decision, either to Appellate Court or the Connecticut Supreme Court in Hartford, and may seek a second writ of habeas corpus.

The Nonhuman Rights Project initially filed a lawsuit in November with the hope of winning the writ and freeing the three animals — Beulah, Karen and Minnie — from the Commerford Zoo in Goshen.

Its petition included an overview of research into the herbivores’ world view, pointing to a series of abilities possessed by elephants, including the ability to plan, communicate, have an awareness of self and of others, solve problems, understand causation and engage in teaching to pass down knowledge, and citing these as examples of their “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.”

Representatives of R.W. Commerford & Sons could not be immediately reached for comment Friday.

Tim Commerford, coowner of the Commerford Zoo, previously called the lawsuit “preposterous” and “far-fetched,” and described it as a ploy for money and media attention. The elephants are appropriately cared for, he has said.

“If I don’t see them on a daily basis, I’m thinking about them, because I grew up with them all my life,” he said. “They’re family. The animal activists can say what they want about it, but they’re part of our family.”