Lawyers for captive chimpanzees Tommy and Kiko have presented their arguments in a habeas corpus appeal in New York and are now awaiting a ruling, which is expected in five to eight weeks’ time.

The president of the Nonhuman Rights Project (NhRP), Steven Wise, and his team have appealed against a lower court’s denial of petitions for writs of habeas corpus on behalf of the two chimps.

They made their case yesterday (Thursday) before a panel of five judges in the New York County Supreme Court (Appellate Division, First Judicial Department).

Wise says that chimpanzees are autonomous and cognitively complex beings, not bound by instinct, who can make rational life choices. They have, Wise says, a right to habeas corpus and should be released immediately to an appropriate sanctuary.

The NhRP lawyers submitted 160 pages of affidavits, including one on behalf of each chimpanzee from the renowned primatologist Jane Goodall, and cited evidence from other experts from the United States, Japan, Sweden, England, Scotland, and Germany.

In front of a packed courtroom, Wise argued that the capacity to bear duties and responsibilities is not a legally acceptable reason for denying recognition of Tommy’s and Kiko’s legal personhood and fundamental right to bodily liberty.

Kiko

In October 2014, in Albany, the Third Judicial Department heard oral arguments in Tommy’s case.

The panel of five appellate judges ruled in December 2014 that that Tommy “is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus” primarily because, in the court’s view, “unlike human beings, chimpanzees can’t bear any legal duties, submit to societal responsibilities, or be held legally accountable for their actions”.

In December 2015, the NhRP filed a new habeas petition on Tommy’s behalf with the New York State Supreme Court.

In denying the NhRP’s petition in December 2015 New York County Supreme Court Justice Barbara Jaffe ruled that the courts in the Third Department had already determined the legality of Tommy’s detention.

Wise said in court yesterday that requiring the ability to bear duties and responsibilities as a precondition for personhood would deprive millions of people in New York the ability to go into court under habeas corpus.

He cited the case of infants, children, and incapacitated and elderly people who could not realistically fulfil that requirement.

He also pointed out that chimpanzees can bear duties and responsibilities within their communities and said that claiming otherwise was “biased and arbitrary”.

The Third Department’s ruling was irrational, Wise told the court. “It was unfair, and it’s not backed up by science.”

Goodall states in her affidavits that chimps do bear duties and responsibilities, particularly in regard to family life.

Wise told the judges that Tommy and Kiko should be freed from captivity to a Florida sanctuary under New York’s common law habeas corpus statute, which guarantees that all legal persons have the right to bodily liberty.

Wise discovered Tommy in Gloversville, New York State, in 2013. The chimpanzee was in a cage in a warehouse on a used trailer lot.

Tommy was in a dark room that had a bank of cages, all of which were empty except his, Wise says.  “There was a small portable television set about ten feet away from him that was tuned to Sesame Street.”

Kiko was found at Niagara Falls, in a cement storefront, along with 29 monkeys and 19 exotic birds.

The NhRP says that Kiko suffers partial deafness as a result of physical abuse he suffered on the set of a made-for-TV Tarzan movie. He has an inner ear condition that requires him to take anti-motion sickness medication, especially during changes in barometric pressure.

The judges asked why Wise was not asking to set Tommy and Kiko free, but was requesting that they be moved to the Save the Chimps sanctuary in Florida.

In a previous denial of habeas corpus for Kiko in January 2015, a judge in Rochester, New York, argued that Kiko’s lawyers were not using the writ of habeas corpus correctly; that it could only be used to move someone from a place of confinement to absolute freedom whereas the NhRP was seeking Kiko’s transfer to an appropriate sanctuary.

Wise pointed out yesterday that there are numerous habeas corpus cases in which the plaintiff is moved from one facility to another, including from a mental hospital to a prison.

Wise also clarified to the judges that he is not seeking “human rights” for Tommy and Kiko, but rather legal rights that would give them protections under the law – namely, the right to bodily liberty.

As the law currently stands, chimpanzees are considered “things,” and the only way to guarantee them fundamental rights would be to have them declared “persons”.

Wise says the basis of the legal cases brought by the NhRP is the same as that underpinning cases brought on behalf of slaves in the 18th and 19th centuries.

He points to the fact that, for centuries, there were many human beings who were legal things for one, and sometimes all, purposes. “Slaves, women, and children were all at some time legal things.”

There are many entities, Wise says, that are not human, and not even alive, but are considered to be legal persons. They include corporations, ships, and partnerships.

In New Zealand this week, the parliament passed a bill that recognises the legal personhood of the Whanganui River.

In July 2015, Justice Jaffe rejected the NhRP’s petition for a writ of habeas corpus for two other chimpanzees, Hercules and Leo, saying that “for now”, she was bound to follow the previous determination of the state appellate court in Tommy’s case.

Hercules and Leo are in captivity at the University of Louisiana’s New Iberia Research Center.

The NhRP is appealing against Justice Jaffe’s ruling and says the New York Supreme Court, Appellate Division, First Judicial Department, which will hear the appeal, is not bound by the Third Department’s decision.

Steven Wise, as seen with Teko in the documentary “Unlocking the Cage”. Photo courtesy of Hegedus and Pennebaker.

Wise has been battling for the rights of nonhuman animals for decades. “I think it went well,” he said after yesterday’s hearing. “It was a lot of questions really fast, which is what we like. Judges have concerns and questions, and it’s a privilege that they express their concerns so that I can address them.

“I thought we did address their concerns. All our arguments are grounded on fundamental ideas of justice. And I think when the judges sit down and look at them, they’ll see the truth in what we’re saying. The reasons that humans have rights are the same as to why nonhumans should have rights. I am eternally optimistic.”

Full background article

Update (12/06/2017):

The New York Supreme Court Appellate Division, First Judicial Department, has rejected the Nonhuman Rights Project’s appeal on behalf of  Tommy and Kiko.

In it ruling, given on June 8, the court held that the NhRP did not have the right to seek writs of habeas corpus on behalf of Tommy and Kiko.

The court gave non-binding opinions about granting legal personhood to nonhuman animals.

The NhRP intends to seek appeal of the decision to New York’s highest court, the Court of Appeals.

Steven Wise said:  “For 2000 years, all nonhuman animals have been legal things who lack the capacity for any legal rights. This is not going to change without a struggle.

“That fight has begun and we remain confident that Tommy’s and Kiko’s fundamental right to bodily liberty will be recognised as a matter of justice so that they too may experience the freedom they so desperately deserve.

“Public opinion has begun to tilt in our favor since we started filing these lawsuits, likely as a result of them.”

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