Update Feb. 9, 2012: A federal judge has granted the defendants’ motion to dismiss, saying there is no standing for Orcas to bring a complaint under the 13th Amendment. In his ruling, U.S. District Court Judge Jeffrey Miller explained that the only "reasonable interpretation of the 13th Amendment’s plain language" is that it protects "persons", not "non-persons such as orcas".
Original report: Five wild-captured orcas named Tilikum, Katina, Corky, Kasatka, and Ulises, have in a case of first impression, filed a Complaint in U.S. District Court for Southern California.
The plaintiff orcas seek a declaration that they are held by the defendants in violation of Section One of the Thirteenth Amendment to the Constitution of the United States, which prohibits slavery and involuntary servitude.
According to the Complaint, the plaintiff orcas were "forcibly taken from their families and natural habitats, are held captive at SeaWorld San Diego and SeaWorld Orlando, denied everything that is natural to them, subjected to artificial insemination or sperm collection to breed performers for Defendants’ shows, and forced to perform, all for Defendants’ profit. As such, Plaintiffs are held in slavery and involuntary servitude".
The Complaint states that "Plaintiffs also seek an injunction freeing them from Defendants’ bondage and placing them in a habitat suited to their individual needs and best interests."
The defendants are SeaWorld Parks & Entertainment, Inc. (SWPE) which owns and operates SeaWorld Orlando and SeaWorld San Diego, and SeaWorld, LLC (SWLLC) which also operates SeaWorld San Diego.
The Complaint states that "Defendants have:
a. restrained and kept Plaintiffs in constant involuntary physical confinement, with no reasonable means to escape and no choice or viable alternative except to perform services for the benefit of the Defendants;
b. deprived Plaintiffs of their ability to live in a manner of their choosing and in which they were intended to live in nature; and
c. intentionally subjugated Plaintiffs’ will, desires, and/or natural drives and needs to the Defendants’ own will and whims, including by means of forcing them to perform tricks and procreate for Defendants’ profit."
About Orcas
The Complaint offers this about orcas: "Plaintiffs are members of the Orcinus orca or "killer whale" species, the largest species of the dolphin family. Orcas possess sophisticated learning, problem solving, and communicative abilities. They also possess distinctive cultural traits. In nature, orcas engage in many complex social, communicative, and cognitive behaviors, including learning-based cooperative hunting strategies and cultural variation among pods and generational transmission of unique cultural traits.
"Orcas live in large complex groups with highly differentiated relationships that include long-term bonds, higher-order alliances, and cooperative networks. They form complex societies with dynamic social roles in intricate networks, many with distinctive cultural attributes in vocal, social, feeding, and play behavior.
"Orcas teach their young, in the sense that they will deliberately modify their behavior-at their own cost-in order to encourage, punish, provide experience, or set an example.
"Orcas are curious, playful, and possess problem-solving ability. For instance, they have overcome a variety of techniques designed to stop them from removing fish from longlines, including the use of unbaited lines as decoys.
"Orcas produce dozens of community, clan, and pod-specific call types, and there is evidence that calls evolve over time and in parallel when shared between separate but associating pods. In fact, intra-species variation in orca calls is so pronounced that other marine mammals have learned to tell them apart based on their calls.
"Orcas produce three types of sounds: clicks, whistles, and pulsed calls. A mother and her calf share a distinctive call pattern and structure. A pod-consisting of several related mothers and their calves-use similar calls, collectively known as a dialect. Complex and stable over time, dialects are composed of specific numbers and types of discrete, repetitive calls. Calves likely learn their dialects through contact with their mothers and other pod members, maintaining group identity and cohesion. Orcas’ transmission of dialects and other learned behaviors from generation to generation is a form of culture. The complex and stable vocal and behavioral cultures of orcas appear to have no parallel outside humans.
"For orcas, finding, catching, preparing, and eating food are social events carried out in the context of an array of traditions and rituals. Food items are shared possibly as an ongoing trust-building exercise.
"The orca brain is highly developed in the areas related to emotional processing (such as feelings of empathy, guilt, embarrassment, and pain), social cognition (judgment, social knowledge, and consciousness of visceral feelings), theory of mind (self-awareness and self-recognition), and communication."
The Complaint describes at length the capture and forced captivity of these animals, the severe deprivation they have suffered as a result.
The Complaint describes "Orcas’ intelligence made them a target of hunters in the 1960s, when they realized that there was money to be made in the global orca trade, trapping and selling them to the new ‘marine entertainment industry.’
"Orca hunters initially focused on Puget Sound and British Columbia, where Plaintiff Corky was captured. A series of incidents, however, turned public sentiment against the hunters. In 1970, the bodies of three young orcas-their bellies slit, their tails weighed down with anchor chains-washed ashore in the Northwest. Six years later, an assistant to Washington State’s governor witnessed a trader hunting orcas with aircraft and seal bombs-small explosive devices used to frighten and corral marine mammals-on SeaWorld’s behalf. The state sued the hunter, settling only after he and SeaWorld agreed to let the orcas go and never to hunt them again in Puget Sound."
"[The hunters] turned their sights to Iceland, where Plaintiffs Tilikum, Katina, Kasatka, and Ulises were captured."
Next Friends
The plaintiff orcas have filed this suit through "next friends". A "next friend" is typically used to pursue litigation on behalf of those who cannot do so for themselves. The next friends include People for the Ethical Treatment of Animals (PETA), Richard "Ric" O’Barry, one of the first orca and dolphin trainers, who has advocated for the release of captive cetaceans for more than forty years; Ingrid Visser, Ph.D., a renowned expert in orcas; Samantha Berg, former employee of SeaWorld Orlando, who regularly and directly interacted with Plaintiffs Tilikum and Katina, conducting training exercises in the water, performing out-of-the-water "dry work," or acting as a spotter during the orca shows and who witnessed orcas regularly develop ulcers and suffer from infections due to the stress caused by captivity; and Carol Ray, a former employee of SeaWorld Orlando who as an orca trainer and caregiver regularly interacted with Plaintiff Katina and five other orcas who have since died, including two of Katina’s offspring and who complained to supervisors and management personnel about the harm resulting from disrupting the orcas’ social structure by taking Kalina from her mother and siblings at a young age and moving Kalina to another facility.
Ms. Ray’s "concerns were dismissed out of hand and mocked, and Ms. Ray was removed from working directly with animals-a common management reaction when trainers complained about SeaWorld’s’ procedures. The night Kalina was taken from Plaintiff Katina, Ms. Ray observed Katina expressing her grief by vocalizing loudly for hours as she stayed floating in one spot, alone in her tank".
Plaintiffs’ claims
Section One of the Thirteenth Amendment of the United States Constitution provides, in pertinent part, "[n]either slavery nor involuntary servitude… shall exist within the United States, or any place subject to their jurisdiction." U.S. CONST. amend. XIII, § 1….
Section One of the Thirteenth Amendment prohibits the conditions of slavery and involuntary servitude without regard to the identity of the victim and without reference to ‘persons.’"
The plaintiffs elaborate, "Although enacted in the historical context of African slavery, the Supreme Court has repeatedly declared that the Thirteenth Amendment is not so limited. Because the Amendment forbids any form of slavery, it embodies a principle that can be (and over the years has been) defined and expanded by common law to address morally unjust conditions of bondage and forced service existing anywhere in the United States."
The Complaint charges "Defendants are holding Plaintiffs in slavery in violation of Section One of the Thirteenth Amendment by, among other things:
a. holding Plaintiffs physically and psychologically captive to the Defendants’ demands and compelling Plaintiffs to serve the Defendants;
b. keeping them by physical means and other coercion with no means to escape and no choice or viable alternative except to perform services for the Defendants;
c. keeping them separated from their homes and families;
d. depriving them of the ability to engage in natural behaviors and determine their own course of action or way of life;
e. exploiting their special vulnerabilities;
f. intentionally subjugating the will, desires, and/or innate drives and natural instincts of Plaintiffs to the Defendants’ will and whims;
g. keeping Plaintiffs continually and constantly confined in unnatural, stressful and inadequate conditions; and
h. forcing Plaintiffs to subject themselves to artificial insemination or sperm collection for the purposes of involuntary breeding."
The plaintiffs bring a second count on the basis the plaintiffs are being held in involuntary servitude in violation of the 13th Amendment, which they say "at a minimum, and as used in this case, … involves the rights to one’s own life and liberty, to labor for one’s own benefit, and to be free from physical subjugation or coercion by another…. As described herein, Defendants have subjected Plaintiffs to conditions repugnant to the Thirteenth Amendment’s prohibition against involuntary servitude."
The entire Complaint is attached below for downloading.