Feb. 5, 2025—Denver, Colorado—The Nonhuman Rights Project (NhRP) has filed a petition for rehearing urging Colorado’s highest court to reconsider its opinion in the NhRP’s elephant rights case on behalf of five elephants held captive in the Cheyenne Mountain Zoo. The petition for rehearing argues that the Colorado Supreme Court incorrectly deferred to the legislature to limit the scope of common law habeas corpus, which is a critical judicial safeguard of civil liberties dating back to the Magna Carta.
“Anyone who cares about civil liberties should be concerned by this opinion no matter their view about elephant captivity in zoos,” said Christopher Berry, Executive Director of the NhRP. “The Colorado Supreme Court should have sent this case back to the lower court to squarely address whether the elephants’ confinement is justified, rather than permitting legislative erosion of the safeguards of habeas corpus.”
In 2023, the NhRP filed a habeas corpus petition under Colorado common law on behalf of the elephants and sought their release to an elephant sanctuary. The writ of habeas corpus, known as “the Great Writ,” is a centuries-old means of challenging unjust confinement. Under the common law, a petition must be decided by a court based on principles of justice, such as liberty, equality, and science, rather than the interpretation of statutes.
In its Jan. 21 opinion, the Colorado Supreme Court upheld a lower court’s dismissal of the case, concluding that the state’s habeas corpus statute applies only to humans “no matter how cognitively, psychologically, or socially sophisticated” a nonhuman animal may be. In reaching that conclusion, the Court looked to the legislature’s general definition of “person” and determined that it doesn’t include nonhuman animals.
“Long revered for its use in challenging unjust confinement—including the unjust confinement of individuals with few or no rights—habeas corpus is rightly regarded as the precious safeguard of personal liberty,” the NhRP writes in its rehearing petition. “However, under this Court’s decision, the Great Writ as such no longer exists in Colorado; what remains is a mere statutory remedy whose protections are subject to legislative curtailment. This is wrong and dangerous.”
“No court should ever give up common law power to remedy injustice–a power Colorado courts had before this opinion, and that could still be preserved if the Colorado Supreme Court chooses to grant this rehearing petition,” said NhRP Senior Staff Attorney Jake Davis.
The Court also wrongly stated that because the NhRP wasn’t seeking to set the elephants loose onto the streets, habeas relief is inappropriate. This aspect of the Court’s opinion ignores its own prior decisions allowing habeas relief that fell short of total release from all confinement.
“Habeas corpus is so important in this country’s history because it protects liberty, and there’s nothing more important than liberty,” said NhRP Litigation Director Elizabeth Stein. “With this unprecedented opinion, the Colorado Supreme Court has chosen to turn habeas corpus on its head rather than allow any further judicial consideration of the elephants’ suffering, their autonomy, and their right to liberty. The Court has turned a blind eye to its judicial obligations under the common law.”
The NhRP’s October 2024 hearing before the Colorado Supreme Court was the first of its kind in the state and the region. With that hearing, the Court became the second US state high court to hear arguments in support of animal rights. The first was the New York Court of Appeals in the NhRP’s case on behalf of Happy the elephant. That litigation concluded in 2022, with now-Chief Judge Rowan Wilson and Judge Jenny Rivera issuing landmark dissenting opinions in favor of recognizing the availability of habeas corpus to certain nonhuman animals. The NhRP extensively cited these dissents in its briefs. However, the Colorado Supreme Court ignored them in its opinion.
“This rehearing petition represents the Colorado Supreme Court’s opportunity to undo its categorical misunderstanding of habeas corpus and appropriately reckon with Jambo, Kimba, LouLou, Lucky, and Missy’s suffering,” said Davis. “While we understand that rehearing petitions are only rarely granted, we believe the legal soundness of our arguments means the Court should seize this opportunity to correct its errors.”
If the Court grants rehearing, it can choose to make a final disposition of the case without reargument, restore the case to the calendar for reargument or resubmission, or issue any other order it deems appropriate. The NhRP expects a decision in the coming weeks.
Further background:
Jambo, Kimba, LouLou, Lucky, and Missy were born in the wild in Africa, taken from their herds when they were young, and imported to the US in the 1970s and 1980s. Among the elephant experts who submitted expert declarations in support of this case is Dr. Bob Jacobs, a former professor of neuroscience at Colorado College who has studied the neurological harm of zoo captivity on elephants. He explained that he personally observed the elephants at CMZ engaging in behavior indicative of chronic stress and trauma, including rocking, swaying, and head bobbing. Elephants living freely in their natural habitats have never been observed exhibiting such behaviors. “From a neural perspective,” Dr. Jacobs wrote in his declaration, “imprisoning large mammals and putting them on display is undeniably cruel.”
- Download the NhRP’s rehearing petition
- Download the NhRP’s habeas corpus petition and the expert declarations submitted in support of this case.
- Visit the elephants’ client page including the elephants’ biographies, information about the exhibit, and the amicus briefs submitted in support of this case.
- Access photos and videos of the elephants for use in media coverage (credit Molly Condit).