Freedom for research chimps: Hercules and Leo are released to a sanctuary

By Annette Gartland on March 24, 2018

Article updated to include new motion filed on behalf of elephants Beulah, Karen, and Minnie and the landmark opinion issued by New York Court of Appeals judge, Eugene M. Fahey in the case of chimpanzees Tommy and Kiko.

Hercules at Project Chimps. Photo credit: Crystal Alba/Project Chimps.

Two chimpanzees, Hercules and Leo, who have been the focus of ground-breaking litigation in the United States, have been freed from the University of Louisiana’s New Iberia Research Center (NIRC) and have been sent to the Project Chimps sanctuary in Morgantown, north Georgia.

They were transferred from the NIRC to the 236-acre sanctuary in the Blue Ridge Mountains along with seven younger male chimps.

Lawyers at the Nonhuman Rights Project (NhRP), who have been fighting to secure freedom for Hercules and Leo for nearly five years, welcomed the decision, but said the delight they felt about Hercules and Leo’s transfer to a sanctuary was tempered by their knowledge of the suffering the chimps endured during their time in captivity.

The NhRP would also have preferred Hercules and Leo to go the Save the Chimps sanctuary in Florida.

The lawyers said: “We are delighted that Hercules and Leo will finally be free of the NIRC, which took them from their mothers at age two, a time when they should have remained in close contact with their families, able to freely explore their environment and constantly play with and learn from other chimpanzees.”

They added, however: “Our joy in learning of Hercules and Leo’s long overdue transfer to a sanctuary is tempered by our knowledge of what they endured during their long years of exploitation at Stony Brook and the fact that first Stony Brook and then the NIRC and Project Chimps steadfastly refused every attempt to transfer them to the Save the Chimps sanctuary, which, since 2013, has offered to care for them for the rest of their lives at no cost to any third party.”

Leo arriving at Project Chimps. Photo credit: Crystal Alba/Project Chimps.

The lawyers says that the refusal by the NIRC and Project Chimps to allow Hercules and Leo to be transferred to Save the Chimps meant that they remained at the NIRC for two and a half years longer than they should have.

“While we recognise that it takes time and money for sanctuaries to responsibly expand, there was no good reason for Hercules and Leo to have remained at the NIRC.”

As “extraordinarily cognitively complex and autonomous beings”, Hercules and Leo are entitled to their bodily liberty, the NhRP says. The two chimps are now 11 years old.

In 2009, the NIRC loaned Hercules and Leo to the State University of New York in Stony Brook, where anatomy researchers used them to study the evolution of upright walking in humans.

This research involved the insertion of fine-wire electrodes into the chimps’ muscles and routinely subjecting them to general anaesthesia.

Leo inside Stony Brook. Photo credit: the Nonhuman Rights Project.

For six years, the NhRP says, Hercules and Leo interacted only with researchers and an animal handler in a basement lab.

On July 30, 2015, Stony Brook announced that the chimps would no longer be used in research.

Five months later, the NIRC took Hercules and Leo back to its facility in Louisiana, where they remained in captivity until their release this week.

In April 2015, New York County Supreme Court Justice Barbara Jaffe issued Hercules and Leo a writ of habeas corpus. The NrHP saw this as a tacit recognition of the chimps’ personhood.

Justice Jaffe also ordered the state university’s legal representative (the New York Attorney General’s office) to appear in court to justify the chimps’ detainment.

“This is the first time in history a court has granted a hearing to determine the lawfulness of a nonhuman animal’s detainment,” the NrHP’s president, Steven Wise, said.

On April 21, Justice Jaffe amended her order, striking out “writ of habeas corpus” and leaving the “order to show cause”.

In July 2015, she issued a ruling in which she rejected the NhRP’s petition for a writ of habeas corpus on behalf of Hercules and Leo.

She said that “for now”, she was bound to follow the previous determination of the New York State Supreme Court, Appellate Division, Third Judicial Department in the case of another chimp, Tommy.

She said: “Efforts to extend legal rights to chimpanzees are … understandable; some day they may even succeed.

“Courts, however, are slow to embrace change, and occasionally seem reluctant to engage in broader, more inclusive interpretations of the law.”

The NhRP says that, although Justice Jaffe did not free Hercules and Leo from captivity or recognise the chimps’ rights, believing herself bound by the ruling of an appellate court, the court, in ordering such a hearing, treated Hercules and Leo just as it would have treated human beings.

“This fact itself represents true progress in the fight for nonhuman rights, and Hercules and Leo will always remain an important part of this larger, continuing story.”

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

Writing in Science, David Grimm said Hercules and Leo had, in many ways, become the face of a tortuously slow effort to move hundreds of the remaining research chimpanzees in the US to wildlife refuges.

Grimm quoted Stephen Ross, who is the director of the Lester E. Fisher Center for the Study and Conservation of Apes at the Lincoln Park Zoo in Chicago, Illinois, and the chairman of the board of Chimp Haven in Louisiana, as saying: “For the first time, there are more chimpanzees in sanctuaries than there are in labs. Hercules and Leo are representative of a movement that’s finally bearing fruit.”

Project Chimps says that it is working with the NIRC to relocate 220 chimpanzees to permanent sanctuary. “To date, with the latest group of nine, forty chimpanzees have been transferred to Project Chimps.”

The renowned primatologist Jane Goodall, who has submitted affidavits in several of the NhRP’s habeas corpus applications, was one of the people who urged the NIRC to allow Hercules and Leo to retire and live out the remainder of their lives with dignity.

“They have suffered long enough, and there can be no excuse for prolonging their lives of servitude,” she said.

The NhRP says it will closely follow the progress of Hercules and Leo at Project Chimps.

“Meanwhile, in the US and beyond, we will continue our fight for recognition of chimpanzees’ personhood and rights, which first brought the story of Hercules’ and Leo’s suffering out of the shadows of research facilities and into public awareness, where it belongs.”

Tommy and Kiko

Kiko

In the case of captive chimpanzees Tommy and Kiko, the NhRP has filed a motion for permission to appeal, and a group of prominent philosophers 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”.

Wise 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.

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.

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

The chimp 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.

Tommy

As the law 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.

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Rights for elephants

The NhRP is also pursuing a case on behalf of three elephants, Beulah, Karen, and Minnie, held in captivity for decades as part of a travelling circus.

In February this year, Judge James Bentivegna of the Connecticut Superior Court denied the NhRP’s motion to reargue its case.

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.

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

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.

Cecilia

Update 19/04/2018

In its lawsuit brought on behalf of Beulah, Karen, and Minnie, the Nonhuman Rights Project has filed a Motion for Articulation with the Connecticut Appellate Court.

The motion seeks clarification of the legal and factual basis for two decisions made by Judge James M. Bentivegna: his ruling on December 26 last year, in which he asserted that the NhRP lacked standing and that its habeas corpus petition was “wholly frivolous on its face as a matter of law”, and his decision on February 27 this year to deny the NhRP’s Motion to Reargue, in which the NhRP details the significant errors made in his initial decision.

The NhRP says that, in the new Motion for Articulation, it is asking the Superior Court to adequately explain its reasoning with reference to specific Connecticut judicial precedent, rules, or statutes.

This new legal move follows the filing of a Notice of Appeal by the NhRP on March 16 this year.

“We continue to be fully confident in the social, historical, political, and legal justice of our arguments in support of recognition of the common law personhood and fundamental right to bodily liberty of elephants and other autonomous nonhuman animals,” the NhRP stated. “For this reason, we look forward to reviewing the Superior Court’s fully articulated reasoning.”

Update 12/5/2018:

A judge in the New York Court of Appeals, Eugene M. Fahey, has issued a historic opinion in which he found that all three intermediate appellate courts of New York that had ruled against the Nonhuman Rights Project in its chimpanzee rights cases had decided wrongly.

“While it may be arguable that a chimpanzee is not a ‘person’, there is no doubt that it is not merely a thing,” Justice Fahey said.

He further stated: “Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her?

“This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention.

“To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others.

“Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.”

The NhRP says Judge Fahey’s opinion is a “historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals”.

The Court of Appeals refused to hear the NhRP’s motion for further review of a lower court decision on behalf of chimpanzees Tommy and Kiko. It didn’t give grounds for its ruling.

“This in itself is not significant insofar as the Court of Appeals rejects the vast majority of motions it receives for permission to appeal,” the NhRP said.

“But Judge Fahey’s concurring opinion makes clear that the decision not to hear Tommy and Kiko’s cases was not made on the merits of the NhRP’s claim.”

Judge Fahey said that, in the case of Tommy and Kiko, the failure of the court to grapple with the issues the NhRP raised “amounts to a refusal to confront a manifest injustice”.

In his conclusions, the judge said: “In the interval since we first denied leave to the Nonhuman Rights Project, I have struggled with whether this was the right decision. Although I concur in the Court’s decision to deny leave to appeal now, I continue to question whether the Court was right to deny leave in the first instance.

“The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a ‘person’, there is no doubt that it is not merely a thing.”

NhRP president Steven Wise said: “We commend Judge Fahey for his willingness to see our nonhuman clients for who they are, not what they are, and his acknowledgement of the importance and urgency of what we and so many other advocates around the world are fighting for.

“This opinion should give hope to anyone who knows the time has come for fundamental change in how our legal systems view and treat nonhuman animals.”

The NhRP says, however, that it laments that the Court of Appeal’s denial of its motion for leave to appeal “means that Tommy and Kiko will have to wait even longer to regain the liberty that was taken from them decades ago”.