Wildlife and animal rights

New York judges to rule on habeas corpus for chimpanzees Tommy and Kiko

Lawyer Steven Wise will be heading into a New York courtroom again today (Thursday) to argue that chimpanzees should be recognised as legal persons.

Wise is the president of the Nonhuman Rights Project (NhRP) and has been campaigning for the rights of nonhuman animals for decades.

Since 1980 – after he read Peter Singer’s book “Animal Liberation: A New Ethics For Our Treatment of Animals – Wise has been determined to change the common law status of at least some nonhuman animals from mere “things”, which lack the capacity to possess any legal rights, to “persons”, who possess such fundamental rights as bodily integrity and bodily liberty.

Making his case today on behalf of two chimpanzees – Tommy and Kiko – Wise will argue that they are autonomous 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.

Chimpanzees are incredibly cognitively complex beings, Wise says.

Today’s hearing will take place in the Appellate Division of the New York County Supreme Court. A panel of five appeal judges will listen to the submissions.

Wise will submit 160 pages of affidavits, including one on behalf of each chimpanzee from the renowned primatologist Jane Goodall, and will cite 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.

In an opinion piece in the New York Daily news today Wise writes: “Chimpanzees communicate with humans using sign language and computers. They make and use tools, have the capacity to imagine, understand the past and plan for the future, are aware of their environments, recognise themselves in mirrors, and take care of orphaned baby chimpanzees. In captivity, they can experience depression and post-traumatic stress disorder.”

Caged and abused

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.”

Concrete walls painted to look like a jungle were the only intimation of a chimpanzee’s natural habitat in Tommy’s cage. Wise says.

The day the investigators found Tommy, the temperature in the warehouse was about 40 degrees below what it would be in his native land.

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

The NhRP says that the chimp 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.

‘World ready for a change in the law’

Wise points out 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, and the same applies to elephants, dolphins, whales, orcas, and any other nonhuman animals whose cause he champions.

When Wise first started to argue for personhood for nonhuman animals back in the 1980s, a few people actually barked at him in court. He was regarded as an oddity with frivolous ideas.

Now, Wise says, the world is different and is ready for a change in the law.

“The whole idea of legal rights for nonhuman animals might have seemed to some people completely absurd in 1987, but in 2017 it is a different world,” Wise recently told Frank Beckmann on WJR radio in Detroit.

There is new scientific evidence and ethics, social mores, ideas, and morals have all changed, Wise says.

Tommy

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.

In December 2013, the NhRP filed a petition for a common law writ of habeas corpus in the New York State Supreme Court in Fulton County to demand recognition of Tommy’s legal personhood and right to bodily liberty and his immediate transfer to an appropriate sanctuary.

“No-one has ever demanded a legal right for a nonhuman animal, until now,” Wise said at the time.

The Fulton County Supreme Court Justice, Joseph M. Sise, denied the habeas corpus petition, but told Wise and his team: “Your impassioned representations to the court are quite impressive.” 

He said he would be available as the judge “for any other lawsuit to right any wrongs that are done to this chimpanzee because I understand what you’re saying”. He wished the lawyers good luck with their venture, adding “I’m sorry I can’t sign the order, but I hope you continue. As an animal lover, I appreciate your work.”

The NhRP appealed and won an injunction to prevent the Laverys from removing Tommy from New York State pending final appeals.

Tommy. Photo credit: Nonhuman Rights Project.

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”.

Even if the lawyers proved that Tommy was autonomous and self-determining, the judges said that, in order to be a person, he would have to bear rights and responsibilities. This, Wise says, is false.

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

“There are millions of people who can’t bear rights and responsibilities, but we don’t eat them and we don’t use them in biomedical research.”

A chimpanzee with an eye-tracking system on her head, and a picture from the outward-facing camera on her headset.

The NhRP filed a motion with the Third Judicial Department for permission to appeal to New York State’s highest court, the Court of Appeals, on the grounds that the Third Judicial Department made several significant errors of law in its decision.

The motion for leave to appeal was denied and the NhRP then filed a motion for leave to appeal to the Court of Appeals directly.

The lawyers argued that that the lower court “fundamentally misunderstood the purpose of the common law writ of habeas corpus” and “reached its conclusion on the basis of a fundamentally flawed definition of legal personhood.”

The Center for Constitutional Rights urged the Court of Appeals to hear Tommy’s case because it presented “a novel question of significant importance, both in terms of the legal precedent it will set and as a matter of social justice and public policy”.

In August 2015, the Court of Appeals denied the NhRP’s motion for leave to appeal further in both Tommy’s and Kiko’s cases.

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

New York County Supreme Court Justice Barbara Jaffe denied the NhRP’s second habeas corpus petition. She ruled that the courts in the Third Department had already determined the legality of Tommy’s detention.

The NhRP then filed an appeal with the New York Supreme Court, Appellate Division, First Judicial Department, and this is the appeal that is being heard today.

Legal scholars Justin Marceau and Samuel R. Wiseman argue in their brief filed in Tommy’s and Kiko’s cases that chimpanzees should be able to use habeas corpus to challenge the legality of their detention just as other “unjustly incarcerated beings” have done throughout history.

Of particular relevance, they note, is use of the writ by innocent human beings imprisoned for crimes they did not commit.

“Nonhuman animals are unquestionably innocent. Their confinement, at least in some cases, is uniquely depraved; and their cognitive functioning and their cognitive harm as a consequence of this imprisonment, is similar to that of human beings.”

Kiko

The NhRP says that Kiko, who is thought to be in his early 30s, 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.

A chimpanzee called Charlie, who was known as the “Karate Chimp” and appeared on TV shows and in the movie “Ghost Rider”, lived in captivity at the Prestis’ facility until he died in November 2013.

Charlie photographed with Whoopi Goldberg.

For more than a decade, the Prestis have said they plan to build a larger facility in nearby Wilson, New York, the NhRP says. “The ‘sanctuary’ is run out of the Prestis’ home, and the chimps aren’t in a natural environment.”

In photos, Kiko can be seen with a steel chain and padlock around his neck, which the Prestis appear to use as a leash.

The NhRP first filed a a petition for a writ of habeas corpus in Kiko’s case in the New York State Supreme Court, Niagara County, in December 2013.

The New York State Supreme Court Justice, Ralph A. Boniello III, denied the habeas petition because he said he was “not prepared to make that leap of faith”, but wished the NhRP luck.

The NhRP filed a notice of appeal. A hearing 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 said at the time that the ruling was in some ways good because the court appeared at points to assume that Kiko was, or could be, “a legal person”. It chose not to adopt the Third Judicial Department’s December 4 ruling in Tommy’s case that chimpanzees can’t be persons because they can’t bear duties and responsibilities.

In April 2015, the NhRP sought permission to appeal directly to the Court of Appeals, but the motion was denied. A new habeas petition was filed in the New York State Supreme Court in January 2016 and was denied.

Hercules and Leo

The NhRP is still waiting to see two other chimpanzees – Hercules and Leo – moved from a research facility in Louisiana to the Project Chimps sanctuary in Blue Ridge, Georgia.

Last May, the University of Louisiana’s New Iberia Research Center (NIRC) announced that Hercules and Leo would be sent to the sanctuary along with 218 other chimpanzees. However, the chimps are still all believed to be in captivity at the medical research facility.

Jane Goodall has appealed for the chimps to be released: “I have followed the sad lives of both Hercules and Leo to date, and I urge New Iberia to allow them 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.”

Hercules and Leo are the focus of a separate lawsuit. The case was heard by Justice Barbara Jaffe in May 2015.

Court proceedings in New York. (Photo by Richard Drew, AP.)

The previous month, Jaffe granted the chimpanzees a writ of habeas corpus, but then struck out the words “writ of habeas corpus”, and changed her ruling to “order to show cause”.

The judgement meant that Stony Brook University, represented by lawyers from the New York attorney-general’s office, had to appear in court and provide a legally sufficient reason for detaining the chimps.

Hercules and Leo were at that time being held at Stony Brook University on Long Island and were being used by researchers in the anatomy department to study the evolution of locomotion: how beings went from bent-leg to straight-leg creatures.

In July 2015, Justice Jaffe announced her ruling, which was a rejection of the NhRP’s petition for a writ of habeas corpus for the two chimpanzees.

Justice Jaffe issued a 33-page decision in the case. She said that, “for now”, she was bound to follow the previous determination of the state appellate court in Tommy’s case.

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.

In making her ruling, Justice Jaffe agreed that the NhRP had standing to bring the case on behalf of a chimpanzee and rejected all the procedural barriers that the attorney-general of New York attempted to place before the court.

She said: “Efforts to extend legal rights to chimpanzees are thus understandable; some day they may even succeed … For now, however, given the precedent to which I am bound it is hereby ordered that the petition for a writ of habeas corpus is denied …”.

Citing the New York Court of Appeals, Justice Jaffe, said: “‘Legal personhood’ is not necessarily synonymous with being human … Rather, the parameters of legal personhood have been and will continue to be discussed and debated by legal theorists, commentators, and courts and will not be focused on semantics or biology, even philosophy, but on the proper allocation of rights under the law, asking, in effect, who counts under our law.”

Wise first filed a case on behalf of Hercules and Leo in December 2013. This was six years after the NIRC sent the two chimps to Stony Brook University to be used in experiments that involved inserting fine-wire electrodes into their muscles and routinely subjecting them to general anaesthesia.

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

Jaffe was the second appellate court judge to hear the case. The first judge threw out the case, and told the lawyers they had no right to appeal. So the NhRP filed again.

The NhRP has begun to work on behalf of three other species of great ape (bonobos, gorillas, and orangutans), Asian and African elephants, and whales, dolphins, and orcas, and plans to bring cases on their behalf in the future.

Wise says that scientific evidence shows that all these species are extraordinarily cognitively complex “in very human-like ways”, and none of them should be in captivity.

Writing in the New York Daily News, he said: “Chimpanzees are not the only animals who are autonomous and self-aware. Gorillas cry when they are sad. Elephants mourn other elephants in their herd when they die. The size of a dolphin’s brain, compared to their body size, is second only to humans. All of these animals are aware of their environments and recognise themselves in mirrors.”

Wise doesn’t call what he practises “animal welfare law” or “animal protection law”; he prefers to refer to it as “animal slave law”. 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.

Wise 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 explains, 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 a landmark judgement in Argentina in November last year, Judge María Alejandra Maurico ruled that a captive chimpanzee named Cecilia at the Mendoza Zoo was a “non-human legal person” with “inherent rights”.

The habeas corpus lawsuit was filed by the Association of Professional Lawyers for Animal Rights (AFADA).

Wise said: “We’re pleased to see habeas corpus lawsuits being filed on behalf of nonhuman animals with increasing frequency in South America … That the court granted AFADA’s petition for a writ of habeas corpus, declared her a nonhuman legal person as opposed to a ‘thing’, and ordered her transferred to a sanctuary within six months is another step in a worldwide struggle to bring legal rights to appropriate nonhuman animals.”

We are, Wise says, on the cusp of changing the legal relationship between nonhuman animals and humans.

“The time is now to push even harder, as hard as we can. And keep pushing until we win.”

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

 

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

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