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Colorado Supreme Court considers whether habeas petition can free zoo elephants

By Debra Cassens Weiss

October 30, 2024, 2:09 pm CDT

The Colorado Supreme Court considered last week whether five wild-born zoo elephants should be considered “persons” entitled to seek liberty through a habeas corpus petition.

During oral arguments Oct. 24, Colorado justices “seemed highly skeptical” of the argument presented by Jake Davis, a lawyer for the nonprofit Nonhuman Rights Project, according to Colorado Public Radio.

The Associated Press, KOAA News and Colorado Politics also have coverage.

Justice Melissa Hart questioned whether a ruling for the elephants could lead to the emancipation of people’s pets, according to the AP.

“How do I know when it stops?” Hart asked.

Davis argued that the zoo elephants are in a unique position, according to Colorado Politics.

“The dog’s place is your couch,” he said. “Elephants are wild animals. They exist entirely separate and apart from human society.”

The Nonhuman Rights Project filed a June 2023 habeas petition on behalf of elephants Missy, Kimba, Lucky, LouLou and Jambo, which are on display at the Cheyenne Mountain Zoo in Colorado Springs, Colorado. The Nonhuman Rights Project wants to send the elephants to a sanctuary where they can roam freely.

“It is time for Colorado common law to evolve to allow the elephants at CMZ to obtain habeas corpus relief from their inherently unjust confinement,” the group said in the petition.

The Nonhuman Rights Project sought freedom for the elephants under Colorado’s common law of habeas corpus, rather than under the state’s habeas statute, which uses the term “person,” according to the group’s description of the case at its website.

Judge Eric Bentley of El Paso County, Colorado, tossed the habeas petition in December 2023 but denied the zoo’s request for attorney fees, saying the habeas petition “represents a good-faith attempt to establish a new theory of law in Colorado.”

Bentley said the elephants lack standing to bring a habeas petition, but even if they had standing, they are not unlawfully confined. He acknowledged that the Nonhuman Rights Project had “made a persuasive case that elephants are entitled to be treated with the dignity befitting their species” but said the proper forum for a remedy is in the legislature.

See also:

A horse is a horse—of course? Oregon Supreme Court denies plaintiff horse case review

Happy the elephant isn’t a person entitled to freedom from detention, top state court rules

In a scoop any journalist would envy, the ABA Crossroads Caucus welcomed professor Jonathan Turley to the first-ever public event to discuss his new book, The Indispensable Right: Free Speech in an Age of Rage, just ahead of its planned release by Simon & Schuster. The program, held Aug. 3 at the ABA Annual Meeting, drew a broad audience, including then-ABA President Mary Smith, past ABA President Deborah Enix-Ross, numerous members of the ABA Board of Governors and at least one retired judge.

Turley, who is the J.B. & Maurice C. Shapiro professor of public interest law at George Washington University, opened his talk by putting the concept of rage in our nation in historical context.

“I have called this an age of rage, but it is not our first. This country was born in rage … that is what the Boston Tea Party was. While celebrated as the moment a free people rose up to reject tyrannical rule, it was actually an economic protest that went from rage rhetoric to rioting.”

For Turley, we are living in arguably the most dangerous anti-free speech period in our history. In our universities, we find students educated in a highly orthodox environment where speech is described as the threat facing our system, rather than the thing that defines us as a people.

So what is it about free speech that makes it “indispensable”? Looking at our country’s legal history, Turley identified Louis Brandeis as one of the greatest civil libertarians to sit on our Supreme Court, a towering figure who (with Oliver Wendell Holmes) authored a series of dissents that would ultimately prevail in the court on the meaning of our fundamental rights.

Brandeis famously regarded free speech indispensable for the maintenance of all other rights. The Supreme Court has repeatedly referenced the indispensability of free speech, including most recently in the 303 Creative case. But our early thinkers and presidents differed on why free speech is indispensable: Is it a natural right, an inherent and foundational aspect of our humanity or, as John Adams and the early American courts came to regard it, a “functionalist” principle that advocates protecting free speech for its functional benefits to democracy, rather than its essence as a human right?

Looking to the sciences, Turley referenced neurological studies that suggest that the human brain is hardwired for expression.

“In the book, I suggest humans are creators with a common need to express themselves in the world around them. Putting aside the desire to procreate as itself an act of creation, the desire to create objects or expressions is irresistible for most people, from the simple act of doodling to the construction of the Great Wall of China.”

Turley cited The Creative Brain: The Science of Genius by neuroscientist Nancy Andreasen, who states that the human brain is wired for nonlinear thought, and as a result, “when the brain/mind thinks in a free and unencumbered fashion, it uses its most human and complex parts.”

For Turley, free thinking is an essential part of our humanity.

In a striking use of the visual arts to make his point, Turley asked his audience to consider Norman Rockwell’s 1943 Freedom of Speech painting. Artist Rockwell was moved to paint his Four Freedoms series after listening to President Franklin Delano Roosevelt’s famed speech of that name on Jan. 6, 1941. Rockwell sought to capture the meaning of this indispensable right. His inspiration for the painting came not from Roosevelt but instead from a young selectman in Vermont named Jim Edgerton, who rose to question the financing of a new school.

Rockwell’s image was so penetrating and powerful that it was adopted by the government as part of its war bond campaign. The painting captures the essence of this right in our nation. Yet for many, it remains a quaint, if not campy, reference. For some, Rockwell was simply not as sophisticated as a cubist or abstract painter.

Turley thinks that that there is a striking parallel to the interpretative perspectives in the art and legal fields. Like the criticism of Rockwell’s work, the natural right or autonomous view of free speech is dismissed as simplistic. The world and art, critics suggest, must be recognized as more complex and nuanced.

While Rockwell studied at some of the leading art schools in America, art critic Clement Greenberg (who is credited as the intellectual force behind abstract expressionism and discoverer of Jackson Pollock, known for his “drip” paintings) denounced his realist art as popular kitsch. He railed against anyone who liked Rockwell (which clearly included most of America).

While Turley admits that he happens to like modern art, he is clear that when it comes to constitutional law, he is unapologetically Rockwellian. In constitutional law, the criticisms offered by Greenberg-like figures are strikingly familiar. Many law professors brush off natural or autonomy-based interpretations of the First Amendment as not “serious” and lacking a certain discernment.

Free speech is one of the paint drops in an abstract constitutional work in which the meaning comes from a functionalist whole. But if there is a “problem” with the First Amendment, it is not that it is abstract but that many academics do not like the seemingly clear meaning. They are constitutional connoisseurs looking at a Rockwell and seeing a Pollock.

For Turley, simple truths, like simple pictures, can hold profound meaning. He views the First Amendment as a work that people can understand without the assistance of interpretative agents to explain that the world is too complex for univocal meanings or simplistic depictions.

For “unsophisticated” viewers like Justice Hugo Black, the concept of free speech is immense, but the protection is clearly depicted: “The First Amendment’s language leaves no room for inference that abridgments of speech and press can be made just because they are slight. That Amendment provides, in simple words, that ‘Congress shall make no law … abridging the freedom of speech or of the press.’ I read ‘no law … abridging’ to mean no law abridging.”

By contrast, Turley thinks that many law professors today often sound like constitutional connoisseurs defining the complexities of free speech to justify limitations on this right. Yet what if the First Amendment is a realist depiction of free speech, both literal and profound? He sees in today’s legal academia an echo chamber a similar domination of constitutional critics who tend to reject a natural rights or autonomous basis for constitutional rights like free speech.

Sadly, most law schools have largely purged their faculties of conservative or libertarian professors. Young faculty embracing such views are at risk of being dismissed as “choosing not to be serious,” and their works are likely to be met with Greenbergian “harrumphs” that they are little more than constitutional kitsch.

Despite the many challenges to free speech that Turley observes, he says he remains optimistic.

“If you believe that free thought and expression are the essence of being human, that impulse cannot be entirely extinguished. While we can lose our appetite for free speech, we never truly lose our taste for it. In the end, our faith in free speech is really a faith in each other. A faith that we do not have to fear opposing viewpoints but rather fear the inclination to silence others.”

The ABA Crossroads Caucus thanks professor Turley for joining us at the Annual Meeting and helping us to launch this debate on the importance of ensuring viewpoint diversity.

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Jo Ann Engelhardt is a member of the ABA Board of Governors representing District 8, a member of the board of the American Bar Foundation and a founding member of the ABA Crossroads Caucus.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

ARCATA, Calif. – The history, archaeological record and ongoing preservation efforts at the Falk townsite in the Bureau of Land Management Headwaters Forest Reserve will be topics of a free presentation, Saturday, Oct. 5, from 2:30 to 3:30 p.m., at the Clarke Museum, 240 E St., in Eureka.

Speakers Julie Clark and James Roscoe will discuss how the town and lumber mill fit into the history of Humboldt County and how an archaeological inventory of the site led to it’s listing in 2023 in the National Register of Historic Places.

Clark worked extensively as a Bureau of Land Management park ranger in the Headwaters Forest Reserve and wrote “Falk:  Lumber Company Town of the American West,” a book detailing life in Falk, a once thriving logging and lumber mill town. She holds Bachelor of Arts and Master of Arts degrees from Humboldt State University (now Cal Poly Humboldt).

Roscoe, former president of the Humboldt County Historical Society, conducted an archaeological field study and inventory of Falk with Humboldt State University that led to the listing of the site on the National Register. He holds a master’s degree in cultural resource management and archaeology, and formerly directed the HSU Cultural Resources Facility.  His is a lifelong Humboldt County resident.

Falk was a busy logging and mill town from 1884 to 1937. Workers toiled deep in the now-protected redwood stands, felling trees, shipping them on Falk’s very own railroad to the mill, and finally sending the lumber to worldwide markets via a port at present day Eureka.

The presentation is one of a year-long series of events chronicling the 25^th anniversary of establishment of the Headwaters Forest Reserve. It is offered by the Humboldt County Historical Society Free Lecture Series and the Clarke Museum.

ARCATA, Calif.— North coast author Jerry Martien will lead a free nature writing workshop, Saturday, Aug. 17, at the Headwaters Education Center within the Bureau of Land Management Headwaters Forest Reserve near Eureka.

Participants should meet at 12:30 p.m. at the Elk River Trailhead for the half-hour walk along a paved and accessible trail to the Education Center. In the family friendly event, Martien will guide participants though his process of “listening” to nature and “translating” what is heard into poetry and prose.

To reach the Elk River Trailhead, take the Elk River Road exit from Highway 101 at the south end of Eureka and turn right onto Elk River Road. Follow the road about six miles to the trailhead parking area.

The event is one of a series of outings and events offered by the BLM this year to celebrate the 25th anniversary of acquisition of the Reserve for public ownership. The Reserve was established in 1999 after a decade long grassroots effort to protect the world’s last unprotected old growth redwood forest ecosystem.

Several threatened species including the northern spotted owl, the marbled murrelet (a seabird), coho salmon and steelhead benefit from the Reserve’s habitat.

ARCATA, Calif. – The story of Falk, a historic town and lumber mill in the Headwaters Forest Reserve, will be told in a free guided archaeology walk offered by the Bureau of Land Management, Saturday, Sept. 14, from 10 a.m. to noon.  Participants should meet at the Elk River Trail parking area. Registration is not required.

Rusty Goodlive, an archaeological site steward, and volunteer docent Kristi Wrigley will lead the one mile walk on the paved and accessible Elk River Trail. Participants will see the restored locomotive barn and sand shack from the townsite and discuss the historical importance of Falk to the region. Falk is an archaeological district listed on the National Register of Historic Places.

Goodlive resides in the north coast region. He is a retired firefighter with an interest in history and archaeology. As an archaeological site steward, he helps monitor the Falk site and explains its history to visitors.

Wrigley is a lifelong resident of the Elk River Valley. Her grandfather was the general manager of the store in Falk, and her uncle was superintendent of the Elk River Mill and Lumber Company that operated from 1905 until 1937. She is a retired surveyor who volunteers for the BLM as a Headwaters docent and archaeological stewardship consultant.

To get to the Elk River Trailhead, take the Herrick Avenue exit off Highway 101 at the southern end of Eureka and turn right on to Elk River Road. Travel 1.6 miles and take another right to stay on Elk River Road.Continue 4.2 miles to the signed parking area and trailhead.

“Two years of pure hell.”

This is how Forensic Justice Project executive director and attorney Janis C. Puracal describes the fight to free her brother, Jason Puracal, after he almost died in Nicaragua’s notorious La Modelo prison.

In 2011, Jason was sentenced to 22 years on drug trafficking and money laundering charges. But Puracal says there was no evidence to support his conviction.

Puracal, then a commercial litigator, got by on a few hours of sleep each night as she worked on the case with a defense attorney and investigators in Nicaragua and brought international attention to the case.   

Puracal says Jason lost so much weight that he was “withering away.” He was deprived of food and clean water, and he also was suffering from untreated inflammatory bowel disease, she says.

Finally, in September 2012, an appeals court overturned Jason’s conviction, and he flew back to his family in the United States. It was then that Puracal realized her work had just begun. “I was just so grateful to the community that had rallied around me and my family. I wanted to give back to that community and create that same sense of support around others who have been wrongfully convicted,” Puracal says.

After a stint at the Oregon Innocence Project, Puracal started the Portland, Oregon-based Forensic Justice Project in 2018. Like the Innocence Project, Puracal helps people who are trying to prove their innocence after a conviction. But she also works with clients pretrial to reveal any flawed or misleading forensic evidence to prevent a conviction in the first place. She adds that she represents people “regardless of guilt or innocence because no one should be convicted on the basis of unreliable forensic evidence.” 

According to the National Registry of Exonerations, which has tracked exonerations since 1989, false or misleading forensic evidence has been a factor in 24% of all exonerations. Puracal also wants to reform Oregon laws on forensic evidence, and she files amicus briefs in cases to help educate the courts.

In 2019, Puracal helped exonerate Nicholas McGuffin, who spent almost a decade in prison after he was convicted in 2011 for the killing of his girlfriend, Leah Freeman, 15, in 2000. He was 18 at the time of her disappearance and death. Puracal and her team revealed several missteps by McGuffin’s trial lawyer and prosecutors. Investigators found the DNA of another man on Freeman’s shoes, but that evidence was never revealed to jurors.  

Aliza B. Kaplan, who is of counsel for Forensic Justice Project, says Puracal has a knack for explaining the science in court, whether she’s making a presentation or questioning a witness.

“She’s laying the groundwork for lawyers and judges and others to really understand the important role that forensic science plays in convicting people in our criminal legal system, and how it’s often used so inappropriately, in a nonscientific way,” Kaplan says.

Puracal says her work is a “family affair.” Jason and her husband, Andrew Lauersdorf, an attorney and former prosecutor, sometimes help her. 

Although prosecutors are often adversarial, she says some are willing to work with her to dismiss a case after they look at the science.

“That has been the surprising thing,” Puracal says. “There is room for us to have a more open conversation about the substance of the forensic sciences that are being used.”

Legal Rebels Class of 2023

Stacy Butler

Josh Blandi

Zachariah DeMeola

Sonja Ebron and Debra Slone of Courtroom5

Natalie Anne Knowlton

Uzoma Orchingwa and Gabriel Saruhashi of Ameelio

Patrick Palace

Janis C. Puracal

In This Podcast: