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Challenging the speciesist status quo

By Spencer Lo

The Nonhuman Rights Project’s Colorado litigation on behalf of Jambo, Kimba, LouLou, Lucky, and Missy, five female African elephants confined at the Cheyenne Mountain Zoo, is proceeding apace. In our last update on this case, my colleague, Jake Davis, mentioned that the day after we filed our habeas corpus petition, Judge Eric Bentley issued an order requiring the Cheyenne Mountain Zoo to respond in writing to our arguments. We were greatly encouraged by this order since Judge Bentley could have simply denied our petition outright, but he didn’t.

Following Judge Bentley’s order, we sent CMZ a settlement offer, whereby the NhRP offered to withdraw our lawsuit if the zoo agreed to allow the elephants to be transferred to an elephant sanctuary accredited by the Global Federation of Animal Sanctuaries (GFAS). CMZ not only rejected our offer, they tried to intimidate us by threatening to seek attorney’s fees—a tactic that left us unimpressed. We informed CMZ that our settlement offer remains open, but should they refuse to release the elephants to a sanctuary, the NhRP is fully prepared to litigate this case to its ultimate conclusion: because Jambo, Kimba, LouLou, Lucky, and Missy have a moral and legal entitlement to their freedom.

Given CMZ’s choice to proceed with further litigation, we have been eager to see how the zoo would legally justify their confinement of the elephants. How would they defend depriving innocent, autonomous beings of their freedom in a court of law—not just in the court of public opinion?

Now we know. And we are not impressed.

Cheyenne Mountain Zoo’s motion to dismiss: defending an indefensible boundary

The CMZ filed a motion to dismiss the NhRP’s petition, to which we have responded in a comprehensive 30-page brief. The core proposition underlying the CMZ’s various arguments is that elephants are rightly invisible to the law—due to their non-membership in the human species. Regardless of what science says about the autonomous nature of elephants and their complex needs, not being human automatically disqualifies our clients from the protections of habeas corpus.

Combating this kind of irrational and arbitrary thinking is the reason the NhRP exists. It is so pervasive in society, yet antithetical to the fundamental values and principles of justice, liberty, and equality. Reminding judges—as well as legislators—of their commitment to these values and principles is how the NhRP, ten years into our unique litigation, has made steady progress in challenging the speciesist status quo, and it is how we will succeed in making untenable the arbitrary, unjust distinctions that legally separate humans from other animals.

In our brief, we write: “The elephants, who are suffering greatly due to their unjust confinement and have committed no wrong warranting the loss of liberty, should not be denied the opportunity to seek their freedom. It is time to reject the irrational and arbitrary notion that only members of the human species may invoke the protections of the Great Writ.”

Through the process of refuting CMZ’s arguments, we demonstrate how the zoo’s attempt to defend an indefensible boundary between humans and elephants fails. For instance, they argue that Jambo, Kimba, LouLou, Lucky, and Missy cannot possess rights because elephants are incapable of bearing responsibilities. This specious argument has been decisively refuted at length, not only by the NhRP, but three judges on the New York Court of Appeals—New York’s highest court—as well as distinguished philosophers, law professors, and other legal scholars. As our brief explains, it is simply not true that possessing rights—particularly the right to bodily liberty—requires the capacity to bear responsibilities; numerous humans, such as infants and adults with advanced dementia, cannot bear responsibilities yet unquestionably have rights, including rights protected by the writ of habeas corpus. The double standard CMZ defends does not withstand rational scrutiny.

None of CMZ’s other arguments fare any better, including their frivolous demand for attorney’s fees, and we are confident we have demonstrated as much.

What to expect next

This week, we expect CMZ to file a reply to our brief. Judge Bentley will then decide whether to grant the zoo’s motion or allow the case to proceed. Regardless of what happens, the fight for Jambo, Kimba, LouLou, Lucky, and Missy’s freedom will continue.

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