Lawyers from the Nonhuman Rights Project (NhRP) in the United States have filed a motion for permission to appeal in the cases of captive chimpanzees Tommy and Kiko, and a group of prominent philosophers¹ have submitted a brief in support of the argument that the chimps are legal persons.

The NhRP argues in its Memorandum of Law that the ruling about Kiko and Tommy issued in the Supreme Court in June 2017 requires review by the New York Court of Appeals, which is the city’s highest court.

The project’s lawyers say the ruling by the Supreme Court, Appellate Division, First Judicial Department is legally wrong. They say a review is required because the ruling conflicts with New York’s common law habeas corpus statute and previous rulings of the Court of Appeals, the First Department, and other appellate departments on issues pertaining to common law personhood and habeas corpus relief.

Their motion for permission to appeal is also based on the “novelty, difficulty, importance, and effect of the legal and public policy issues raised”.

The NhRP took the unusual step of releasing an annotated version of the June 2017 ruling in which it provides a point-by-point breakdown of the numerous legal errors it says the court made. It is available as an interactive multimedia web page via Genius Annotations and as a downloadable PDF.

A group of 17 philosophers with expertise in animal ethics, animal political theory, the philosophy of animal cognition and behaviour, and the philosophy of biology have submitted an amicus curiae brief² in support of the NhRP’s new motion.

They urge the Court of Appeals – “in keeping with the best philosophical standards of rational judgment and ethical standards of justice” – to recognise that, as nonhuman persons, Kiko and Tommy should be granted a writ of habeas corpus and their detainers should have the burden of showing the lawful justification of the chimps’ current confinement.

“We submit this brief in our shared interest in ensuring a more just co-existence with other animals who live in our communities,” the philosophers write.[tweetquote]

The  philosophers say they reject arbitrary distinctions used to (rightly) protect humans while denying adequate protections for other animals, “given their relevantly similar vulnerabilities to harms and relevantly similar interests in avoiding such harms”.

They tackle one of the core issues raised in the NhRP’s appeal: the question of who is a legal person capable of possessing legal rights.

They maintain that the First Department’s ruling “uses a number of incompatible conceptions of person which, when properly understood, are either philosophically inadequate or in fact compatible with Kiko and Tommy’s personhood”.

A decision on the motion for permission to appeal is expected within six to eight weeks.

The NhRP has been battling since 2013 to obtain freedom for Tommy and Kiko. The aim, says NhRP director Steven Wise, is to take them to the Save the Chimps sanctuary in Florida, “where they can live with other chimpanzees in a more natural environment where their fundamental right to bodily liberty will be respected”.

The lawyers are also working to obtain the release of two other chimps, Hercules and Leo, and to win habeas corpus for three elephants – Beulah, Minnie, and Karen – held in captivity for decades as part of a travelling circus.

In 2016, litigation modelled on the NhRP’s lawsuits resulted in the recognition of a chimpanzee, Cecilia, as a legal person with rights in Argentina, and her transfer to a sanctuary in Brazil.

Wise points out that affidavits by numerous eminent primatologists have attested to the fact that chimpanzees possess the relevant capacities to qualify as persons, and says the First and Third Departments have not disputed the facts regarding chimpanzee capacities.

“Personhood determines who counts, who lives, who dies, who is enslaved, and who is free. Legal persons possess inherent value and exist for their own sakes; ‘legal things’ possess merely instrumental value and exist for the sakes of legal persons,” the NhRP states in its Memorandum of Law.[tweetquote]

Tommy and Kiko, Wise says, are “self-aware, autonomous beings who deserve the right to enjoy, in a sanctuary environment, the emotionally, socially, and intellectually rich lives we humans deprived them of when they were born into captivity some thirty years ago”.

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

In their brief, the philosophers say that if Tommy and Kiko are released to Save the Chimps, they will no longer be confined indoors alone in small enclosures.

“They will have markedly more freedom to roam, explore, and forage, they will have the opportunity to develop and exercise more typical chimpanzee social capacities, all the while expanding their goals and preferences to reflect the greater opportunities afforded them.”

In their current conditions of captivity, the chimps’ interests in acting autonomously are profoundly violated, the philosophers write. In a sanctuary like Save the Chimps or Chimp Haven, those autonomous capacities would be respected.

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Tommy

Wise discovered Tommy living alone in a cage in a shed on a used trailer lot along Route 30 in Gloversville, New York.

The chimpanzee 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.”

Tommy 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.

Kiko

The NhRP says that, to the best of its knowledge, Kiko is still being held in captivity in a cage in a cement storefront attached to a home in a residential area in Niagara Falls, New York.

The chimpanzee was found in the 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.

Legal arguments

In its appeal in March 2017, 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 an earlier denial of habeas corpus for Kiko in January 2015, a judge in Rochester, New York, argued that the chimp’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 says 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.

He also points out 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.

He 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.

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, the parliament passed a bill that recognises the legal personhood of the Whanganui River.

Hercules and Leo

The NhRP is still working to get two other chimpanzees, Hercules and Leo, freed from the University of Louisiana’s New Iberia Research Center.

New York County Supreme Court Justice Barbara Jaffe made a ruling in July 2015 in which she rejected the NhRP’s petition for a writ of habeas corpus on behalf of the two chimps.

Hercules and Leo have been in the New Iberia Research Center since Stony Brook University decided to no longer use them in research.

Anatomy researchers had used the chimps to study the evolution of upright walking in humans. This research involved dozens of administrations of general anaesthesia and the insertion of wires into the chimps’ muscles,

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

Habeas corpus for elephants

In the case of the elephants Beulah, Minnie, and Karen the NhRP has filed a motion to reargue.

The lawyers are asking the Connecticut Superior Court to reverse its dismissal of a habeas corpus petition that the NhRP filed in November last year on behalf of the elephants, who are in captivity at the Commerford Zoo in Goshen, Connecticut.

In its new motion, filed on January 16 this year, the NhRP argues that the superior court made significant errors in its dismissal of the habeas corpus petition, which is the first lawsuit in the world to seek personhood for elephants.

The NhRP says that “in accordance with state common law and scientific evidence of elephants’ autonomy”, the court should recognise the animals as legal persons with the fundamental right to bodily liberty, and immediately release them to the Performing Animal Welfare Society’s ARK 2000 natural habitat sanctuary, “where they will be able to choose how to live their lives while living in a community of elephants”.

PAWS has already agreed to provide the elephants with a permanent home.

Minnie the elephant at Commerford Zoo. Photo by Jennifer Fermino for Animal Defenders International.

1. Kristin Andrews (York University), Gary Comstock (North Carolina State University), G.K.D. Crozier (Laurentian University), Sue Donaldson (Queen’s University), Andrew Fenton (Dalhousie University), Tyler M. John (Rutgers University), L. Syd M Johnson (Michigan Technological University), Robert C. Jones (California State University, Chico), Will Kymlicka (Queen’s University), Letitia Meynell (Dalhousie University), Nathan Nobis (Morehouse College), David Peña-Guzmán (California State University, San Francisco), James Rocha (California State University, Fresno), Bernard Rollin (Colorado State), Jeffrey Sebo (New York University), Adam Shriver (University of British Columbia), and Rebecca L. Walker (University of North Carolina at Chapel Hill).
2. An amicus curiae is someone who is not a party to a case and is not solicited by a party, but who assists a court by offering information that bears on a case. The  court has the discretion to decide whether or not to admit the information. 

Update

Judge James Bentivegna of the Connecticut Superior Court has denied the NhRP’s motion to reargue its case on behalf of Beulah, Karen, and Minnie.

The judge also refused to allow the NhRP to amend its petition for a common law writ of habeas corpus on behalf of the three elephants.

He said this was primarily because the basis of the NhRP’s petition was not constitutionally protected liberty, i.e. a liberty interest protected by the due process clause of the Fourteenth Amendment.

“This may indeed be the kind of liberty that a convicted prisoner needs to invoke habeas corpus in the state of Connecticut,” the NhRP said. “But it never has been the kind of liberty that individuals who are not convicted prisoners, such as our three elephant clients, need to prosecute a common law writ of habeas corpus under the law of Connecticut or anywhere else in the world.”

The NhRP will appeal against the latest decision.

“We look forward to obtaining in the Connecticut appellate courts the justice and freedom to which Beulah, Karen, and Minnie, as autonomous, extraordinarily cognitively complex beings, are entitled under the Connecticut common law of habeas corpus,” Wise stated.