Tommy

The NhRP files a petition for a common law writ of habeas corpus in New York State Supreme Court, Fulton County to demand recognition of Tommy’s right to liberty and release to a sanctuary. “No one has ever demanded a legal right for a nonhuman animal, until now,” says NhRP President Steven M. Wise of our first of its kind lawsuit, which is based on abundant, robust scientific evidence of chimpanzees’ self-awareness and autonomy. Read and download our Memorandum of Law; Exhibit A – Trust; and affidavits submitted by Steven M. Wise, Sarah Baeckler Davis, James R. Anderson, Christophe Boesch, Jennifer M.B. Fugate, Mary Lee Jensvold, James King, Tetsuro Matsuzawa, William C. McGrew, Mathias Osvath, and Emily Sue Savage-Rumbaugh.

Fulton County Supreme Court Justice Joseph M. Sise holds an hour-long hearing. At the end of the hearing, he offers his support for Tommy but denies our habeas petition:

“Your impassioned representations to the Court are quite impressive … I will 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. You make a very strong argument. However, I do not agree with the argument only insofar as Article 70 applies to chimpanzees. Good luck with your venture. I’m sorry I can’t sign the order, but I hope you continue. As an animal lover, I appreciate your work.”

The Third Judicial Department rules 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.”

The NhRP files 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 12.14.14 decision.

Legal scholar Laurence H. Tribe, Carl M. Loeb University Professor and Professional of Constitutional Law at Harvard University, submits an amicus curiae brief in support of the NhRP’s motion, asserting 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—a leading legal advocacy organization on issues of civil liberties and human rights—submits an amicus curiae brief in support of the NhRP’s motion. CCR urges the Court of Appeals to hear Tommy’s case because it “agrees with the [NhRP] that [it] presents 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.”

The NhRP files a new habeas petition on Tommy’s behalf with the New York State Supreme Court, New York County to again demand Tommy’s release from unlawful detention. Court filings include a revised Memorandum of Law and 60 additional pages of expert affidavits submitted by Jane Goodall, James R. Anderson, Christophe Boesch, Mary Lee Jensvold, William C. McGrew, and Sue Savage-Rumbaugh. Collectively, these documents demonstrate that chimpanzees can and do bear duties and responsibilities. At the same time, we maintain that the capacity to bear duties and responsibilities isn’t a prerequisite to legal personhood.

New York County Supreme Court Justice Barbara Jaffe denies the NhRP’s second habeas petition “to the extent that the courts in the Third Dept. [already] determined the legality of Tommy’s detention, an issue best addressed there, & [where the new petition is] absent any allegation or ground that is sufficiently distinct from those set forth in the first petition.”

Legal scholars Justin Marceau, Professor Of Constitutional and Criminal Law at University Of Denver Sturm College Of Law, and Samuel R. Wiseman, Professor of Constitutional and Criminal Law at Florida State University College Of Law, request leave to file an amicus curiae brief in support of the NhRP in Tommy’s case. In the brief, they exhort the Court to allow Tommy 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.”

Legal scholar Laurence H. Tribe requests leave to file an amicus curiae brief in support of the NhRP in Tommy’s case. In the brief, Tribe urges the court to consider Tommy’s case on the merits and “recognize that he is an autonomous being who is currently detained and who is therefore entitled to challenge the lawfulness of his detention by petitioning for the writ, even if that court ultimately concludes that [their] detention is lawful.”

The NhRP requests leave to file a reply to an amicus curiae brief filed 11.29.16 by Pepperdine University Law Professor Richard L. Cupp, Jr. with the First Judicial Department. Cupp “offers neither science nor law to support his positions” and reasons from a flawed understanding of the meaning of the social contract and how the common law evolves, the NhRP argues. Replies to amicus briefs aren’t common, and courts have ample latitude to ignore them, but we file one nevertheless because Cupp’s arguments far exceed the purpose of such a brief, in our view.

In a joint hearing for Tommy and Kiko in Manhattan, NhRP President Steven M. Wise argues that the capacity to bear duties and responsibilities isn’t a legally acceptable reason for denying recognition of Tommy’s and Kiko’s legal personhood and fundamental right to bodily liberty. Requiring this capacity as a precondition for personhood “[would deprive] millions of humans in New York the ability to go into court” under habeas corpus, a reference to infants, children, incapacitated and elderly people who cannot realistically fulfill this requirement. Wise points out that chimpanzees can bear duties and responsibilities within their communities and says claiming otherwise is “biased and arbitrary.” The Third Department ruling  was “irrational,” he tells the court, citing Tribe’s amicus brief. “It was unfair, and it’s not backed up by science.”

The NhRP delivers a letter to the First Judicial Department to notify the Court of 1) a recent ruling in Mohd. Salim v. State of Uttarakhand & Others that recognizes two rivers as legal persons with fundamental legal rights 2) the publication of a law review article that critiques the Third Judicial Department’s ruling in Tommy’s case and 3) a significant error in Black’s Law Dictionary regarding the definition of a legal person. According to the most recent edition of Black’s Law Dictionary, a “person” must have the capacity to bear “rights and duties.” However, the source on which the the definition is based actually states that “a person is any being whom the law recognizes as being capable of rights or duties.” The Third Judicial Department relied on the erroneous definition to deny personhood to Tommy the chimpanzee in 2014.

NhRP Executive Director Kevin Schneider emails the editor-in-chief of Black’s Law Dictionary, Bryan Garner, to notify him of the error and urge him to correct it. In an email sent in response, Garner thanks Schneider for drawing the error to his attention and writes that he has “marked it for correction in the [next] edition.”

The First Judicial Department denies the NhRP’s supplemental motion.

The First Judicial Department denies our motion for permission to appeal. Within the next 30 days, the NhRP will file a motion for permission to appeal with the Court of Appeals itself, urging it to reject the First Judicial Department’s erroneous approach to our common law habeas corpus cases and to engage in the mature weighing of public policy and moral principle these novel and complex legal issues demand.

The NhRP announces it has filed a motion for permission to appeal to the New York Court of Appeals in Tommy’s and Kiko’s cases, and a group of prominent philosophers submit an amicus curiae brief in support. The NhRP argues in its Memorandum of Law that the First Judicial Department’s ruling requires review by the state’s highest court, not only because it 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, but also “based on the novelty, difficulty, importance, and effect of the legal and public policy issues raised.”

The NhRP announces that legal advocacy organization the Center for Constitutional Rights and law professors Laurence H. Tribe, Justin Marceau, and Samuel R. Wiseman have submitted amicus curiae briefs in support of the NhRP’s motion for permission to appeal.

The New York Court of Appeals denies our motion for permission to appeal, and New York Court of Appeals Judge Eugene M. Fahey issues a concurring opinion in which he asserts that the failure of the Court to grapple with the issues the NhRP raises “amounts to a refusal to confront a manifest injustice … 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.”

Judge Fahey concludes his opinion with a striking personal reflection: “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.”

Judge Fahey’s opinion is believed to be the first time a Court of Appeals judge has issued a separate opinion on a motion before the Court.

After the Court of Appeals declines to hear Tommy’s case, the NhRP focuses its efforts on demonstrating he was moved out of state and determining his exact location.