Could five elephants become legal persons in Colorado court?

For the first time in state history, the Colorado Supreme Court will hear arguments Thursday about whether animals are entitled to legal protections against imprisonment, including the right to challenge their custody.

The Nonhuman Rights Project, a nationwide civil rights organization trying to secure legal rights for animals, is suing the Cheyenne Mountain Zoo in Colorado Springs on behalf of the institution’s five elephants in hopes of getting the animals released into a sanctuary that has not been identified under the writ of habeas corpus that protects people against unlawful and indefinite imprisonment.

“‘Person’ is a term that attaches to any individual or entity possessing (or capable of possessing) a legal right,” the Nonhuman Rights Project wrote in its appeal. “…If animals have legal rights, then they are legal persons.”

The project backed by six elephant experts, including award-winning researcher Dr. Joyce Poole and neuroscientist Bob Jacobs, claims the zoo’s small exhibit size, terrain and lack of mental stimulation is causing the elephants long-lasting physical and mental harm.

Zoo officials called the lawsuit filed by the “out-of-state, extreme animal rights organization” last summer “frivolous” and a waste of resources in a Tuesday news release.

“The elephants have a right to a hearing to determine whether or not their confinement is unjust,” said Jake Davis, an attorney with the Nonhuman Rights Project. “It’s an argument we made in the district court where, unfortunately, we lost.”

The El Paso County District Court dismissed the case in June, claiming elephants are not “persons” under federal or state law and therefore don’t fall under the jurisdiction of habeas corpus, according to court documents. Now, the Nonhuman Rights Project is taking its request to Colorado’s highest court.

A state Supreme Court victory for the elephants would send the case back to the district level and force the lower-level court to hold the habeas corpus hearing. If the Nonhuman Rights Project wins there, the elephants living in Colorado Springs would become legal persons.

The district court decision and any potential appeal would only apply to the Cheyenne Mountain Zoo elephants, Davis said. Later cases would have to come forward with their own facts and wouldn’t necessarily share the same outcome, regardless of whether they were brought forward for the same species.

Generally, federal law considers animals to be property rather than persons, a long-lasting debate in the animal law world, University of Denver law professor Sarah Schindler said.

However, multiple court victories and legal statutes have already given animals rights normally associated with people, said Schindler, who taught animal law for 12 years at the University of Maine School of Law.

For example, anti-cruelty statutes prevent animals from being harmed in ways other forms of property are not protected against, she said. States have also passed laws allowing animals to be beneficiaries of trusts, even though people can’t leave their money to other property.

“Common law is court-made law, and the common law has long expanded to encompass new rights or interpret rights differently,” Schindler said. “This court could allow the common law to evolve in this way, to encompass the rights of these elephants.”

Schindler said change in common law is tied to changes in societal norms. So, as society’s understanding and treatment of animals have changed, common law also should change to absorb those new norms.

Elephants need space, varied terrain and freedom of choice — three things the Colorado zoo can’t provide but an animal sanctuary could, Davis said.

But Cheyenne Mountain Zoo officials claim a sanctuary would be no different in terms of freedom than the elephants remaining in the zoo, and that the journey there could cause more harm than good.

“Our elephant care team knows the needs of our elephants and tailors specific health and exercise programs based on each elephant’s needs and preferences,” zoo officials said in a statement. “Suggesting they’d be better off at a sanctuary is simply incorrect.”