Lawyers for captive chimpanzees Tommy and Kiko have taken the unusual step of publishing a fully annotated document that lays out their criticisms of a New York appeal court’s ruling that denied habeas corpus for the chimps.

The annotated version of the June 8 ruling is available as an interactive multimedia web page via Genius Annotations and as a downloadable PDF.

In an appeal hearing in March this year, the Nonhuman Rights Project (NhRP) argued that chimpanzees should be recognised as legal persons who have the right to habeas corpus.

NhRP president Steven Wise and his team appealed against a lower court’s denial of petitions for writs of habeas corpus for the two chimps.

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

Wise says the First Department’s ruling is legally wrong.

“We unanimously concluded that the First Department had almost no idea what the NhRP alleged in our habeas petitions, what our major arguments were, or even what relief we were seeking for Tommy and Kiko,” Wise said.

“Our annotations provide a point-by-point breakdown of the numerous legal errors the court made.”

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

The NhRP hopes that its annotations will prompt public debate about the court decision.

The lawyers will file a motion for leave to appeal to New York’s highest court, the Court of Appeals, within the next two to three weeks.

The judges wrote in their ruling: “The asserted cognitive and linguistic capabilities of chimpanzees do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions.”

They said that nonhumans “lack sufficient responsibility to have any legal standing”.

They further stated: “While petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process.”

Wise says that the Lewis v. Burger King case on which the appeal court judges base the above argument does not support their assertion.

He says the lawyers for Tommy and Kiko found dozens of legal errors in the decision, including the court’s claim that the NhRP “does not challenge the legality of the chimpanzees’ detention”.

The NhRP’s entire case was a challenge to the legality of the chimpanzees’ detention, he says.

The First Department also appears to have failed to understand that the NhRP brought its habeas petitions solely under New York’s common law, which does not rely on precedent, “but on evolving standards of morality, scientific discovery, and human experience”, Wise adds

The case, he says, was not brought under the New York constitution or the United States constitution, as the court asserted.

“The NhRP has the right to have a court decide its case based on the powerful public policy arguments that we actually made, rather than in response to straw-man arguments created by the court itself in an apparent effort to arbitrarily deny personhood and rights to these two autonomous beings.

“Especially in today’s political climate, where fundamental human rights are under threat, US courts must engage in a mature weighing of public policy and moral principle no matter the issue, but especially if the issue is an autonomous being’s freedom.”

At the hearing in March, Wise argued 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.

He said 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.

“There are plenty of humans who cannot bear rights and responsibilities; those with Alzheimer’s or in a coma, for instance.”

Wise says that chimpanzees are autonomous and cognitively complex beings, not bound by instinct, who can make rational life choices.

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

For the March hearing, 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.

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

Wise says that June 22 – the 245th anniversary of the seminal Somerset v. Stewart decision that transformed a human being from a legal thing to a legal person and ended human slavery in England – was a fitting day to publish and share the annotated document.

Tommy

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

Photo credit: Nonhuman Rights Project.

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.”

The chimpanzee was raised from infancy by Dave Sabo, the former proprietor of “Sabo’s Chimps”. He appeared as “Goliath” in the 1987 film Project X.

Animal activist and TV icon Bob Barker and others alleged that trainers beat the chimpanzees used in the film with clubs. After Sabo died in 2008, “ownership” of at least some of the chimpanzees passed to Patrick and Diane Lavery in Gloversville.

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.

Kiko

The NhRP says that Kiko, who is thought to be in his early thirties, was originally “owned” by an exotic animal collector and trainer named Roger Figg. He is now believed to be in captivity in a cage in a cement storefront attached to the home of Carmen and Christie Presti in a residential area in Niagara Falls, New York.

In addition to Kiko, the NhRP says, the Prestis are holding numerous other primates in captivity under the auspices of a tax-exempt, non-profit corporation called The Primate Sanctuary, Inc., currently operated out of their home.

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.

A hearing in Kiko’s case was held in Rochester, New York, in December 2014 and, in January 2015, the habeas petition was denied.

The judge’s argument was 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 challenges this. “There are numerous cases, including many cases involving slave children in the 1840s and 1850s,” he said. “Those kids weren’t sent out into the streets of Boston or New York.” The children were sent from one place of confinement into someone’s care, Wise points out.

Wise says that he is seeking personhood for chimpanzees, not human rights. He’s not suggesting that chimps are people; the rights he is seeking for chimpanzees are chimpanzee rights, he says, and the same applies to elephants, dolphins, whales, orcas, and any other nonhuman animals whose cause he champions.

Photo courtesy of Chris Hegedus & D.A. Pennebaker.

More to follow.

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