Jambo’s story breaks my heart. Throughout her life, she has been punished for things outside of her control. She was born an elephant, abducted from the wild, and sold to a circus so she could provide entertainment value for her owners. After a fatal incident with her circus handler she was shipped to the Cheyenne Mountain Zoo where this video footage shows her alone in a small barren enclosure swaying back and forth. Expert testimony submitted with our habeas corpus petition on behalf of Jambo—along with Missy, Kimba, Lucky, and LouLou, who are also held captive at the zoo—explained that this swaying is evidence of brain damage, which routinely afflicts elephants held captive in zoos. Our habeas corpus petition argued that the law cares about liberty, that Jambo cares about her liberty, and that Colorado courts should therefore care about her liberty too.
Last month, the Colorado Supreme Court upheld its dismissal of the elephants’ case. Essentially, the Colorado Supreme Court responded by punishing Jambo for being born an elephant, saying that it did not care about her liberty “no matter how cognitively, psychologically, or socially sophisticated” she may be. But the Court did more than that—its reasoning erodes the power of judges to protect basic civil liberties in a way that threatens liberty for everyone. And unfortunately, recent developments in New York, Utah, and elsewhere underscore that this threat is not limited to Colorado.
The Colorado Supreme Court itself observed that the purpose of habeas corpus is “the protection of individuals from wrongful restraints upon their liberty” by providing “[an effective] remedy [from] intolerable restraints.” To put it simply, the core question in a habeas corpus case is: is this confinement justified? If not, the court must provide a remedy.
Whether to even answer that question—is this confinement justified?—was the specific issue before the Colorado Supreme Court in this case. The Court was not deciding whether to immediately release Missy, Kimba, Lucky, LouLou, and Jambo to a sanctuary, but whether the captives were even entitled to a hearing to determine whether their confinement was wrongful. In other words, at this stage in the lawsuit, we were merely asking for the lower court to review all of the evidence and answer the simple question: is the confinement of Missy, Kimba, Lucky, LouLou, and Jambo wrong?
Instead of sending the case back to the lower court to answer that question, the Colorado Supreme Court dodged the issue entirely. It ruled that the lower court did not even have the authority to consider the question because the legislature did not give it permission to hear cases involving injury to a nonhuman’s liberty. In making that determination, the Colorado Supreme Court said that it did not matter how sensitive or intelligent someone is if they are not human: “Colorado’s habeas statute only applies to [human beings], and not to nonhuman animals, no matter how cognitively, psychologically, or socially sophisticated they may be.”
In asking the Colorado Supreme Court to reconsider this opinion the NhRP argued that the opinion opens the door to legislative curtailment of habeas corpus protection. This curtailment reduces the power of courts in a way that not only harms the liberty of nonhuman individuals but human ones as well.
The Court’s decision to let this opinion stand is a failure of justice. Courts exist to answer fundamental questions of right and wrong. And protection of civil liberty—especially involving habeas corpus—falls squarely within the power of the courts to protect individuals from indifference or malice by the other branches of government. When the legislature is indifferent or even hostile to someone’s liberty, that is when it is most important for courts to consider whether the confinement is wrong.
The Colorado Supreme Court’s erosion of judicial authority to protect civil rights is paralleled by the Utah State Legislature’s passage of an anti-rights statute that the NhRP recently challenged in court. That anti-rights law, among other things, broadly forbids judges from interpreting any law or issuing any ruling that recognizes legal rights for nonhuman animals and certain other nonhuman entities. This is an extreme violation of the separation of powers. The role of courts is to interpret and apply laws. Like the Colorado case, the Utah law sets a dangerous precedent for stripping courts of their authority to rule on issues of fundamental justice and basic liberty.
This shrinking of judicial power has effects that spill beyond NhRP cases, as illustrated by a recent case in New York. A human prisoner was continuously shackled by their wrists and legs for nearly a month. An attorney unaffiliated with the NhRP brought a habeas corpus petition arguing that there was no reason to keep them shackled in this way, and that such shackling violated their right to liberty. The judge dismissed that case. In support of that dismissal, the judge cited the Happy opinion where a 5-2 majority of the New York Court of Appeals spuriously declared that courts could not grant habeas corpus relief that would transfer Happy the elephant from the Bronx Zoo to a sanctuary, i.e. one form of confinement to (in their view) a lesser form. Applying that logic, the judge in the more recent habeas corpus case reasoned she had no authority to stop the government from unreasonably and indefinitely shackling a prisoner because release from the shackles would not result in immediate release from the prison. The judge’s dismissal was recently upheld on appeal.
This New York case underscores that unjust reasoning against nonhuman animals threatens everyone. In its resolve to dismiss Happy’s case, the New York Court of Appeals majority wrote an opinion that is now being used to strip courts of the ability to use habeas corpus to remedy instances of wrongful confinement of humans and nonhumans alike. The Great Writ of Habeas Corpus that has existed since the Magna Carta is supposed to serve as a safety net to protect liberty. But that protection is now being eroded across the board by judges themselves in order to avoid answering the simple question: is this nonhuman animal’s confinement justified? Anyone who cares about protecting civil liberties should be concerned about this erosion regardless of how they would answer the question in any particular case.
Together, the outcome in Colorado, the anti-rights legislation in Utah, and the case of continuous shackling paint a disturbing picture: the power of an independent judiciary to protect civil liberties is under threat, often by courts themselves. In the struggle ahead, the NhRP will fight for the power of courts to answer basic questions of civil liberty. Questions like: is this confinement wrong?
In the case of Jambo and the other elephants at the Cheyenne Mountain Zoo the answer to that question should be: yes, her confinement is wrong. Regardless, everyone should be able to agree that courts should squarely answer that question and not simply avoid it. Doing so is necessary not just for nonhuman rights but for a justice system that does justice at all.