Extending Patrick Henry's call for freedom to autonomous sentient beings

'Tempora mutantur et leges mutantur in illis' - Times change and the laws change with them.

Patrick Henry's impassioned plea - "Give me liberty or give me death" - endures as a universal declaration that freedom is a fundamental right for all, limited only by society's evolving definition of who is included in the term all. Today, a growing movement demands that Billy the Elephant, and Tina, be granted their freedom from captivity at the Los Angeles Zoo (LA Zoo).

Billy has been the focus of a high-profile campaign championed by celebrities Lily Tomlin and Cher, who advocate for him to spend his remaining years at an elephant sanctuary. One petition to #FreeBilly garnered over 432,000 signatures. A parallel effort to free Happy the Elephant from the Bronx Zoo through a habeas corpus petition drew support from one of the nation's preeminent constitutional scholars, retired Harvard Law Professor Laurence Tribe. Tribe argued that Happy the Elephant's right to freedom derives from the fact that she is an intelligent, autonomous, sentient being with the ability to self-determine. Brief for Amicus Curiae Laurence H. Tribe in Support of Petitioner-Appellant, July 13, 2020, filed in The Nonhuman Rights Project, Inc., on behalf of Happy v. James J. Breheny, et al., New York Court of Appeals Case No. 2020-02581, available at https://www.nonhumanrights.org/wp-content/uploads/2020-02581_Proposed-Brief-of-Laurence-H.-Tribe-as-Amicus-Curiae.pdf.

Our understanding of elephants has evolved dramatically. We now recognize that elephants are among the most intelligent creatures on Earth. They possess collaborative problem-solving skills, greet each other with affectionate trunk hugs, communicate through complex body language and rumbles - including calling one another by name - and form deep social and familial bonds. They show empathy, assist those in need, engage in ritualistic mourning ceremonies, and even flinch in anticipation of another elephant's pain. They are also playful, even known to play practical jokes on friendly humans.

Elephants, however, suffer horribly in captivity. The constant pressure of their weight on a confined area compacts the ground, causing cracks in their foot pads, which often leads to painful and deadly infections such as osteomyelitis. Chronic psychosis characterized by head-bobbing, rocking, and swaying - which both Billy and Tina exhibit - is common. As California Court of Appeal Justice John Segal found when he was a Superior Court Judge, "Captivity is a terrible existence for any intelligent, self-aware species, which the undisputed evidence shows elephants are. To believe otherwise ... is delusional. And the quality of life that Billy, Tina, and Jewel endure in their captivity is particularly poor." Leider v. Lewis, et al., LASC Case No. BC375234, Statement of Decision, July 23, 2012, at p. 30.

Those who make laws are beginning to take notice. In October 2024, U.S. Congresswoman Nicole Malliotakis (R-NY-11) introduced the CHER Act, which would ban the captivity of elephants in zoos. H.R. 10049, Captivity of Helpless Elephants Reduction Act of 2024.

And although Happy did not win her freedom, two judges on New York's highest court issued compelling dissents, concluding that Happy the Elephant had established a prima facie case that her confinement at a zoo was cruel and inhumane, and that elephants should have the right to petition for their freedom. In the Matter of Nonhuman Rights Project, Inc. v. Breheny, et al., 38 N.Y.3d 555, 620 (2022) (Wilson, J. dissenting) ("Happy has established a prima facie case that her confinement at the Bronx Zoo stunts her needs in ways that cause suffering so great as to be deemed unjust"); id. at 642 (Rivera, J. dissenting) ("[Happy] is held in an environment that is unnatural to her and that does not allow her to live her life as she was meant to: as a self-determinative, autonomous elephant in the wild. Her captivity is inherently unjust and inhumane. It is an affront to a civilized society, and every day she remains a captive - a spectacle for humans - we, too, are diminished.")

To date, thirty-eight zoos have voluntarily closed their elephant exhibits in North America, including several in California, with many sending their elephants to sanctuaries. Tragically for Billy and Tina, the LA Zoo is not on this list.

Although the Los Angeles City Council in 2024 ordered the LA Zoo to provide a written report within 30 days detailing the causes of death of elephants Jewel and Shaunzi, the LA Zoo failed to comply.

Billy and Tina - the two surviving elephants confined at the LA Zoo - have done nothing to deserve a life sentence of captivity other than being born elephants - a magnificent species that attracts human curiosity. These exceptionally intelligent, deeply social animals deserve freedom and dignity. They have the opportunity to live their remaining years at the Performing Animal Welfare Society sanctuary in Northern California, a spacious refuge with natural terrain, varied habitats, grasslands, forests, and bodies of water. However, they will not gain freedom without loud and persuasive human voices advocating for their release.

Billy and Tina's plight is urgent. We implore you to contact the LA Zoo, the Office of Mayor Karen Bass and all the members of the Los Angeles City Council and echo Patrick Henry's impassioned plea: grant Billy and Tina their freedom in the name of liberty for all.

Hon. Paul A. Bacigalupo retired from the Los Angeles Superior Court in 2024 and now serves as a neutral with ADR Services, Inc. He is a past president of the California Judges Association, and a founding co-chair of the CJA's Judicial Fairness Coalition and Committee on Mindfulness and Wellness.

Theresa J. Macellaro is the founder of The Macellaro Firm, P.C., a business and entertainment law firm focusing on high-profile and high-impact litigation. She is co-chair of the Los Angeles County Bar Association (LACBA) Animal Law Section and co-chair of the Multicultural Bar Alliance of Southern California. She was editor of the American Bar Association's Animal Law Report, co-founder of one of the nation's first law school courses on Animal Law and served as a Los Angeles Animal Services Commissioner.

David Mannion is a partner at Blakeley LC and vice chair of the LACBA Animal Law Section. He is a first-generation immigrant who became a U.S. citizen in 2021.