Nonhuman Rights Project v. Cheyenne Mountain Zoo

“It is time for Colorado common law to evolve. Having committed no wrong warranting the loss of their liberty, Missy, Kimba, Lucky, LouLou, and Jambo should be allowed to invoke the protections of the Great Writ so they can challenge their inherently harmful confinement.” – NhRP brief

In June 2023, the NhRP filed a habeas corpus petition on behalf of five wild-born female African elephants confined at the Cheyenne Mountain Zoo—Missy, Kimba, Lucky, LouLou, and Jambo. Our petition alleges that the elephants are being unlawfully confined in violation of their common law right to bodily liberty protected by habeas corpus, thus entitling their release to an accredited elephant sanctuary.

As an initial ask of the District Court, our petition sought a writ of habeas corpus that would have required the court to hold a merits hearing on the lawfulness of the elephants’ confinement; the issuance of the writ is a necessary step before a habeas petition can be granted. We contend that under Colorado law, the District Court was required to issue the writ (and thus hold a merits hearing) because the petition established a prima facie case that the elephants are being unlawfully confined. However, the District Court granted the Zoo’s motion to dismiss our petition, ruling that because the elephants aren’t human, they aren’t “persons” with the right to bodily liberty. In our appeal before the Colorado Supreme Court, we contend that the District Court was wrong to dismiss our petition before issuing a writ of habeas corpus.

Key Arguments

The NhRP’s central contention is that the District Court was required to issue a writ of habeas corpus because our petition makes a prima facie case that the elephants are being unlawfully confined—specifically, that their common law right to bodily liberty protected by habeas corpus is being violated. A crucial question is thus whether the elephants have the right to bodily liberty. Can they be denied the recognition of this right simply because they aren’t members of the human species? Or is that recognition supported by considerations of science, evolving societal norms, and the fundamental principles of justice, liberty, and equality?

We’re asking the Colorado Supreme Court to reject the position that the elephants can be denied habeas relief simply because of their species membership (i.e., because they have the wrong biology) and not to perpetuate an unjust status quo. Instead, the Court should evolve the common law so that the elephants can challenge their unjust confinement.

The District Court made three main arguments for why habeas corpus is limited to humans: Colorado’s habeas corpus statute uses the term “person” in reference to the confined individual seeking habeas relief, and as a matter of statutory interpretation, “person” is limited to humans. Second, habeas corpus has never been made available to nonhuman animals by any English-speaking court; in other words, there is no precedent for the NhRP’s position. Third, elephants are simply not human, and our human-made legal system only affords rights to humans.

First, we argue that the District Court erred in its analysis by treating the issue as a statutory interpretation question. Habeas corpus is a common-law writ and not a creature of statute. Accordingly, the question of who is a “person” for purposes of habeas corpus is inherently a normative question, to be decided by common law principles. Colorado’s habeas corpus statute merely governs procedures; it does not determine the Great Writ’s substantive scope—i.e., who may avail themselves of its protections.

Second, the term “person” in Colorado’s habeas corpus statute is merely a placeholder for individuals who possess the right to bodily liberty. If the elephants have the right to bodily liberty, they are necessarily “persons” for purposes of habeas corpus. The question then becomes: do these elephants have the right to bodily liberty? And how should courts approach this question? As indicated above, we contend that this is an inherently common-law question, which means courts must look to considerations of science, evolving societal norms, and the fundamental common law principles of justice, liberty, and equality. When these considerations are applied to the scientifically proven facts in the case, they support the recognition of the elephants’ right to bodily liberty—and thus their legal personhood for purposes of habeas corpus.

Third, the Great Writ has long been celebrated for its flexibility and potential to evolve. Throughout history, the common-law writ has been flexibly used to challenge unjust confinements, including the unjust confinement of individuals with few or no rights (e.g., enslaved persons, women, and children). This history supports our use of the Great Writ to challenge the unjust confinement of Missy, Kimba, Lucky, LouLou, and Jambo.

Finally, the position that only humans can have rights is arbitrary and irrational because it ignores the central importance of the elephants’ proven autonomy and extraordinary cognitive complexity. In Colorado, autonomy is a supreme and cherished common law value, which lies at the heart of the right to bodily liberty. Accordingly, to exclude elephants from invoking the protections of habeas corpus despite their proven autonomy is to hold that autonomy does not matter. It is to hold that the fundamental principles of justice, liberty, and equality, which command the protection of autonomy, do not matter either.

The Colorado Supreme Court thus has a choice to make: it can either affirm the fundamental values and principles that courts are duty-bound to uphold, or it can reject them. We contend that it must do the former, as the latter is untenable.