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Endangered Species Act
The Blog of Legal Times, February 4, 2009

Elephant Trial Starts With a Show

The trial between Ringling Bros. and Barnum & Bailey Circus and its animal rights critics kicked off in front of a packed house today. And while opening arguments were slightly more subdued than your average big-top affair, lawyers for both sides did their best to put on a show.

The bench trial, which will determine whether Ringling’s elephant-handling practices violate the Endangered Species Act, drew a crowd of supporters from both camps, who filled Judge Emmet Sullivan’s courtroom at the U.S. District Court for the District of Columbia. The spectators seemed to segregate along party lines – pro-circus on the left, pro-activists on the right – while a court employee went scrambling to find a spare room, where latecomers could watch the proceedings on a television.

The stars of the event, for most of the morning at least, were the elephants themselves. Arguing for the animal organizations that brought the case, Katherine Meyer, of Meyer Glitzenstein & Crystal, spun a positively Dumbo-like account of the pachyderms’ daily lives, describing cross-country trips spent chained for days on end in dank train cars, standing in piles of their own excrement and unable to move. A tape showed the elephants shifting restlessly in a cramped-looking, lowly lit freight car.

After holding up a rather imposing “bull hook” – it looked a bit like an oversized fire-poker – Meyer described handlers wielding the long, sharp rod to prod and sometimes beat the elephants into a state of fearful submission, adding that pliers were also used to train infants.

“These highly intelligent animals stand lifeless, dispirited, in a stupor, for fear of the bull hook,” Meyer said, capping off the grim litany of alleged abuses.

John Simpson of Fulbright & Jaworski brought a folksier tone to the proceedings as he spoke for the defense, arguing that this was not a case about the tools of the elephant trade, but rather an attempt to eliminate elephants from entertainment completely.

Ringling’s handling methods have been in use for thousands of years and are employed by nearly every zoo in the country, he said. Without them, the animals couldn’t be a part of Ringling’s show.

“They can’t say they’re not against elephants in the circus,” Simpson said in his light southern drawl. “It’s like saying you’re not against baseball, just the bats and the balls.”

Much of Simpson’s opening argument was spent attacking the plaintiffs’ reading of the Endangered Species Act, going through some provisions word by word. But he had his own bag of props as well, pulling out a much smaller, more humane-looking version of the bull hook, which he called a guide – “I don’t know where they got their guide at, maybe the Smithsonian,” he joked – and playing a rather pastoral video of Ringling’s retired elephants at their breeding center in Florida, calmly munching on hay.

“As you can tell, they’re in outstanding health,” Simpson said.

“How can I tell they’re in outstanding health?” asked Judge Sullivan.

“Just look at them,” Simpson said, noting that some of the animals on tape had joined the circus during the Eisenhower administration. Sullivan seemed satisfied with the answer.

The show is expected to play on for about a month.

Photo © Paul S. Hamilton