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Amicus support for the fight to #FreeTheCMZElephants

By Jake Davis

In May, the Nonhuman Rights Project filed an opening brief in the Colorado Supreme Court, urging it to reverse a District Court ruling that denied elephants Jambo, Kimba, LouLou, Lucky, and Missy a hearing on the lawfulness of their imprisonment in the Cheyenne Mountain Zoo (CMZ) simply because they’re not human. Ultimately, our lawsuit (a habeas corpus petition) demands recognition of the elephants’ fundamental right to liberty and their release to an elephant sanctuary—as is consistent with Colorado common law and judges’ most cherished principles of justice. Our case marks the first time Colorado’s highest court will be in a position to rule on arguments concerning a nonhuman animal’s right to liberty.

In addition to the affidavits submitted by elephant cognition and behavior experts at the outset of our litigation, the NhRP’s legal fight for the elephants’ freedom has gained the support of experts on law, philosophy, social justice, and more in the form of amicus curiae briefs.

What are amicus curiae briefs, and why are they important?

Latin for “friend of the court,” an amicus curiae requests permission from a court to advise it regarding a matter of law. An amicus curiae can be a person, an entity like a business, a nonprofit, a trade association, or the government, or a group of people or entities (in which case you’d use the plural form of the Latin noun for friend, amici curiae).

An amicus brief details the authors’ expertise and arguments regarding the case at hand. If the court grants the author(s) permission to file an amicus brief, the court can take into consideration their arguments along with the arguments made by the parties directly involved in the case.

Often, courts will cite to amicus briefs in their decisions. For example, New York Court of Appeals Justice Eugene M. Fahey favorably cited to the amicus and amici briefs submitted in support of the NhRP in the historic opinion he issued in our chimpanzee rights cases. In other words, he relied in part on what these experts wrote in their briefs as he urged his fellow judges to reject chimpanzees’ legal thinghood and treat the question of nonhuman animals’ rightlessness as

a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.

Six amicus briefs by a total of 61 people or groups have been filed with the Colorado Supreme Court in support of Jambo, Kimba, LouLou, Lucky, and Missy’s habeas petition.


Who are the authors of the amicus briefs, and what do they argue?

Justice Edwin Cameron

Hailed by Nelson Mandela as one of their country’s finest heroes and renowned for his unrelenting pursuit of justice for the marginalized, Justice Edwin Cameron is a retired judge and former Justice of the Constitutional Court of South Africa, the country’s highest court. His amicus brief argues that legal personhood in the US and South Africa is a developing, malleable concept capable of embracing nonhuman animals as legal rights-holders. In describing how legal personhood (i.e., the capacity to have at least one legal right) has shifted over time, Justice Cameron notes: “South African law once excluded women, enslaved humans, those with certain disabilities, and it systematically subordinated Black humans. Now, by contrast, we embrace more expansive conceptions of personhood.”

While on the bench, he used this perspective to draw an analogy for nonhuman animals in a hallmark dissenting opinion highlighting those nonhuman animals’ status as rightless entities: “Though animals are capable of experiencing immense suffering, and though humans are capable of inflicting immense cruelty on them, the animals have no voice of their own. Like slaves under Roman law, they are the objects of the law, without being its subjects.”

Ultimately, Justice Cameron argues it is well within the purview of the South African judiciary to evolve its common law by applying the constitutionally enshrined principles of dignity, freedom, and equality to nonhuman animals, thus prohibiting discrimination based on species membership. He argues this South African roadmap should persuade the Colorado Supreme Court to at the very least issue a writ of habeas corpus on behalf of the dignified, equal-in-relevant-respects, and freedom-deserving elephants at the center of this case.

Read Justice Cameron’s brief here.

Professor Maneesha Deckha

The author of numerous works in the fields of animal law and philosophy and the Lansdowne Chair in Law at the University of Victoria Faculty of Law, Professor Maneesha Deckha writes that the “classification of animals as property, or ‘things,’ is ethically deficient when measured against a range of leading social theories about who is entitled to legal personality and subjecthood in the common law.” Through her scholarship, Prof. Deckha has shown how “discriminatory attitudes toward animals in the form of anthropocentrism and human exceptionalism support other systematic biases in North America such as sexism and racism.”

Prof. Deckha argues the common law must depart from “an instrumentalist and insufficient view of animal protection to a robust one more in line with contemporary science and socio-legal thinking based on animals’ inherent value.” Regarding elephants specifically, she doubles down on her view of insufficiency, calling their captivity “poorly justified and out of step with scientific and progressive scholarly assessments questioning human subordination of animals.”

If not yet evidenced, her amicus brief is replete with worthwhile perspective and language such as her commentary on human exceptionalism: “The legal personhood/property divide in the common law that classifies nonhuman animals like Missy, Kimba, Lucky, LouLou, and Jambo as property, rests on an anthropocentric cultural outlook that views humans as superior and exceptional in the natural world. This outlook is called ‘human exceptionalism.’ Human exceptionalism is ethically indefensible on multiple policy grounds.”

Prof. Deckha goes on to explain how human exceptionalism is 1) logically flawed 2) part of a conceptual and structural matrix that promotes inequality and discrimination 3) responsible in substantial part for the current environmental crisis, and 4) justifies the property status of nonhuman animals that causes them immense harm—like the daily harms suffered by Missy, Kimba, Lucky, LouLou, and Jambo at the Cheyenne Mountain Zoo.

Ultimately, Prof. Deckha affirms that no court has yet provided a persuasive explanation for why elephants are excluded from the conferral of rights and thus the status of legal persons when other nonhumans can qualify as persons (e.g., corporations, ships). She calls on the Colorado Supreme Court to “build upon justice-promoting domestic precedent for a substantive rule of law, as well as take guidance from international decisions that have invoked the rule of law in relation to animal wellbeing and promoted a capacious substantive vision for the rule of law in matters regarding fundamental rights.”

Read Prof. Deckha’s brief here.

Shannon Minter and Evan Wolfson

Shannon Minter and Evan Wolfson are attorneys and longtime leaders in the LGBT movement, “with experience and expertise in achieving social transformation and advancing rights and inclusion.” Minter is the Legal Director for the National Center for Lesbian Rights, a United States Supreme Court litigant, a former “California Lawyer of the Year,” a multiple esteemed award winner, and an honorary degree holder. Evan Wolfson is a similarly accomplished individual, leading the Freedom to Marry campaign, which achieved marriage rights for same-sex couples in the US. Along with being an attorney, he is a speaker, author, law professor, Medal of Distinction recipient, and Time magazine “100 most influential people in the world,” among numerous additional accolades.

The Minter and Wolfson brief urges the Colorado Supreme Court to carefully consider Missy, Kimba, Lucky, LouLou, and Jambo’s’ “urgent claims for relief.” As the other amicus authors have done, Minter and Wolfson reject the District Court’s reasoning, framing its decision as “improperly impos[ing] artificial, judicially created constraints on the enormous flexibility of the common law.” They analogize the District Court’s decision to the “improper limitations . . . identified by the Supreme Court in Lawrence v. Texas . . . when it struck down laws criminalizing same-sex intimacy and reversed as wrong and short-sighted its own prior decision in Bowers v. Hardwick.” Their analogy is simple: “They wish to show that the analytical errors identified by the Supreme Court when it rejected Hardwick can shed a powerful light on similar analytical errors by the lower court here.”

The most luminescent error in this case is the District Court’s improper brightening of the question presented, i.e., whether Missy, Kimba, Lucky, LouLou, and Jambo are “persons” for purposes of habeas corpus relief. As Minter and Wolfson shade, “courts have not asked, as they should, whether the subject of the petition has a liberty interest that habeas must protect, but formalistically, whether the subject is a person.” The more fundamental question is “whether intelligent, self-aware social creatures” like the elephants “have a liberty interest that the common law of habeas corpus is capacious enough to protect.” Minter and Wolfson credibly label the District Court’s reasoning as circular: “Because animals have not brought habeas petitions in the past, they cannot bring them now. Because the petitioners are animals rather than people, their assertion of any liberty interest must be dismissed out of hand, regardless of the potential strength of such a claim on the merits.” This is not justice, it is not logical, and it is certainly not how the law is administered.

Minter and Wolfson also discuss the history of liberty rights, aptly insisting, “[i]n concluding that history does not support courts’ jurisdiction to hear habeas corpus petitions on behalf of non-human animals, the courts have overstated the impact of laws that treat animals as merely as property and understated the significant and continuing growth of new laws that treat animals as persons.” They conclude their brief with a call to action: “this Court should address the important question of whether they also have a right to, or at least some meaningful interest in, liberty.”

Read Minter and Wolfson’s brief here.

Law professors

Twenty-four law professors from the US and Canada submitted a joint amicus brief calling on the Colorado Supreme Court to reverse the District Court’s dismissal of the petition for a writ of habeas corpus and remand with instructions to grant the writ and ultimately the Petition. Underlying their amicus brief is the argument that developments in law, ethics, and science warrant the inclusion of at least some nonhuman animals, including Missy, Kimba, Lucky, LouLou, and Jambo, in the community of legal rights-holders (i.e., legal persons) who are entitled to justice. Pointedly, the brief “argues that instead of grounding our legal community in biological prejudice, the proper approach is to recognize rights as legal protections stemming from both positive law (such as legislative grants of rights) and the fundamental values of the common law (such as liberty and equality).”

That the District Court must be reversed rests on several distinct grounds according to this group of law professors. The first is the District Court’s overreliance on dictionary definitions of the term “person,” when the court should have engaged in a legal analysis regarding whether the law could and should protect autonomous entities who are manifestly suffering.

Second is the District Court’s reliance on inapposite and misplaced case law, an especially glaring problem when one realizes the court missed on-point, persuasive authorities from Colorado and beyond.

Third is the social contract theory: “The District Court grounded its decision in an undertheorized social contractarianism.” In other words, social contract theory almost exclusively serves “the interests of injustice—even extreme injustice,” because its foundational philosophies favored “property-owning, white men as the archetypal social contractors,” overtly categorizing all others (human or nonhuman) as inferior (social contract theory is a complicated philosophical concept that courts have used to justify denying the NhRP’s clients relief. For more on this topic, check out this blog post).

Fourth, they suggest the Supreme Court must view the conferral of a liberty right to each elephant through the lens of protections stemming from the “extension of common law values to new cases in order to meet changing social norms.” Such a position would be consistent with “the legal reality of Coloradan and American law generally.”

The majority of the final third of the brief argues that nonhuman animals already have legal rights thus normalizing the granting of the right to liberty to Missy, Kimba, Lucky, LouLou, and Jambo. The law professors base this argument on the existence of anti-cruelty laws (i.e., the right not to be treated cruelly) and trust laws (i.e., the right to the corpus of a trust), both of which confer legal rights and thus the status of a legal person onto nonhuman animals. Finally, the law professors appeal to North American Indigenous law, which “preexisted the imposition of English common law in North America and has continued uninterrupted since then” while affirming a “worldview that incorporates intergenerational and interspecies interest in a way that traditional English common law did not.” Simply, “many Indigenous legal systems and cultural practices view animal interests as co-equal with human interests.”

Read the law professors’ brief here.

UK animal law experts

Twenty-four UK-based legal academics, solicitors, and barristers who variously teach, research, advise, and litigate in the field of animal law submitted an amicus brief to assist the Colorado Supreme Court in “grappling with the historical and contemporary legal issues that this case raises.” They begin by reciting numerous instances where courts have addressed elephant autonomy and their extraordinary cognition, concluding the “cases and legal opinions demonstrate an emerging awareness amongst the judiciary—reflecting shifting scientific knowledge and public moral norms—that detaining elephants in zoos will often, if not always, be incompatible with allowing them to have a minimally decent life.”

Next, they rebuke the District Court’s “reliance on proceduralist and formalistic rationales for dismissing the NhRP’s request for a writ of habeas corpus” and provide numerous, persuasive examples of habeas corpus being employed to challenge the unjust confinement of rightless entities, including in cases involved enslaved humans, domestic abuse cases, child custody disputes, and the confinement of non-citizens. They assert if “similar lines of reasoning [were] deployed in previous landmark habeas rulings that liberated enslaved humans, abused wives and children, Indigenous people, and prisoners of war, the Great Writ would not be the cherished bastion of liberty it is today.”

Finally, the UK academics remind the Supreme Court that the “ethics of confining [the elephants] in zoos is increasingly being questioned,” and “there is plausible evidence that [the elephants] would fare better in elephant sanctuaries.” This is a compelling commentary when contextualized by the fact that habeas corpus is “a well-suited procedural vehicle” for reviewing instances of “ethically-fraught” questions of confinement.

Read the UK experts’ brief here.


Nine philosophers from the US and Canada with expertise in animal ethics, politics, theory, the philosophy of animal cognition and behavior, and the philosophy of biology submitted a joint amicus brief “because of [their] interest in ensuring that the law is applied and interpreted in a manner that is consistent with the best philosophical standards of rational judgment and ethical standards of justice.” Their primary argument is that “while there are several ways of conceptualizing legal ‘personhood,’ there is no reasonable conceptualization that includes all humans while excluding all other animals.” To affirm this point, the philosophers refute two conceptions of “personhood” cited by the District Court. The first conception is the idea that legal personhood is an exclusively human label, walling off all other species from invoking its title. But the “concept of ‘personhood,’ with all its moral and legal weight, is not a biological concept and cannot be meaningfully derived from, say, the biological category of Homo sapiens.” For example:

[I]f “person” is defined as “beings who possess certain capacities” (e.g., capacities to reason, experience emotions, and/or act autonomously), and humans usually possess those capacities, then an individual’s being human can be used to predict, with some degree of accuracy, that said individual will have the relevant capacities and thereby be a person. However, such a definition would not support the view that all and only humans are persons. After all, if there are other animals who also possess the relevant capacities then they too must be regarded as persons.

As the philosophers note, the District Court accepted elephants are “autonomous and extraordinarily cognitively complex beings with complex biological, psychological, and social needs.” Thus, on the principle that like cases should be treated alike (a truism in the law), the District Court’s concession “supports the recognition of a basic right to liberty and provides an appropriate ground for habeas relief.”

The second conception of “personhood” cited by the District Court is social contract theory. The philosophers clarify that “[t]here is nothing in the idea of the social contract, as it has been historically understood, that precludes emergent laws from extending protections or entitlements to non-contractors (be they humans or nonhumans who either will not or cannot contract with others).” For example, “[i]nfants, young children, and those found not guilty by reason of insanity are examples of humans who cannot enter into a social compact, but who are nonetheless recognized as persons with legal rights.” Simply, the social contract is “not a plausible prerequisite of personhood or, alternatively, of being a rights holder.”

The philosophers round out their brief by rejecting the idea that human education and conservation interests complicate the issue of seeking the release of Missy, Kimba, Lucky, LouLou, and Jambo. They also reject the argument (which they take care to mention is not supported by any evidence) that recognizing the elephants’ rights to liberty “would have detrimental effects on society.” The bottom line is that these two arguments (and ones like them) avoid “the substantive issues at the heart of this case. Analogous concerns would not, and should not, matter if the liberty rights of humans were under consideration.

Read the philosophers’ brief here.

Our litigation to #FreeTheCMZElephants is our first lawsuit in Colorado. Learn more about their case on their client page. For further reading, see: What’s wrong with the Cheyenne Mountain Zoo elephant exhibit

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