It was a packed courtroom at the New York Supreme Court, Appellate Division, for the Matter of the Nonhuman Rights Project v. Lavery, 518336 – better known as Tommy the chimpanzee’s appeal hearing.
Even the gallery was at capacity. Security was tight. Reporters, photographers and a film crew were lined up along the sides of the courtroom. People conversed in hushed whispers – the marble walls and wood panels engender an atmosphere of calm and decorum.
At 1 p.m. the five judges entered the courtroom, led by Presiding Justice Karen Peters. The hearing was expected to last 10 minutes in a long afternoon schedule of appellate cases. But the judges were clearly engaged and interested in the case, and they kept asking questions for a full 22 minutes.
Looking always friendly, if occasionally also stern, Justice Peters took the lead. She’d obviously done her homework, which meant reading hundreds of pages of legal briefs and scientific affidavits testifying to the complex cognition, self-awareness and autonomy of chimpanzees.
Since the whole case rests on the question of whether a nonhuman animal can be regarded as a “legal person”, Peters posed the key question to Attorney Steven M. Wise, President of the Nonhuman Rights Project:
Isn’t legal personhood just about human beings?
“Tommy has the autonomy and self-determination that is sufficient for him to be a legal person,” Wise replied.
There are many examples of legal persons that are not human beings.
Holding up a law dictionary, Justice Michael Lynch pressed this a bit further: “Can you give any example in here where, in a habeas corpus context, the word ‘person’ has been shifted to a nonhuman being?” he asked.
Wise replied that the New York Court of Appeals has made it clear that legal personhood is not synonymous with a human being. “A legal person is a legal concept. It is not a biological concept,” he said. Legal personhood means that the entity counts in civil law, and there are many examples of legal persons that are not human beings, including a river, a religious holy book, and a mosque.
But why not go to the legislature with these cases?
Wise replied that the courts and legislatures are co-equal branches. Either branch could act. Whatever the legislature may or may not do, the court has a duty to recognize that Tommy is a common law person entitled to a writ of habeas corpus.
We’d also note that the animal welfare laws passed by legislatures, including the U.S. Congress, have been remarkably weak. Even though Tommy is living in solitary confinement with only a TV for company most of the time, his “owner”, Patrick Lavery, is not breaking any laws. That’s why we’re seeking a common law remedy on his behalf.
We’re looking for him to be in a situation that’s as close to the wild as possible within North America. One of the sanctuaries he may go to is Save the Chimps sanctuary in Florida. It has an artificial lake and 13 three-acre islands where the chimpanzees live in groups of 20-25.
This is very different from being held in solitary confinement in a cage in a room in a warehouse-type structure with a small portable television.
Why isn’t the ASPCA or some other animal welfare organization involved?
Because we’re not claiming that this is a welfare issue. (Again, animal welfare laws actually permit Mr. Lavery to keep him the way they do.) Instead, we are claiming that Tommy is entitled to a writ of habeas corpus because he is being unlawfully imprisoned and therefore being deprived of his fundamental common law right to bodily liberty.
The judges also wanted to know if we had asked Tommy’s owner to voluntarily relinquish him.
In fact, we’d asked him twice, and in writing. We’d even offered to help send Tommy to one of the designated sanctuaries. And we’d said that we would drop the case if the respondent agreed, but he refused.
After 20 minutes of questions, Justice Peters invited Attorney Wise to give a brief closing statement. He responded:
“The uncontroverted facts demonstrate that chimpanzees possess the autonomy and self-determination that are supreme common law values that the writ of habeas corpus was constructed to protect. Both common law liberty and equality entitle him to common law habeas corpus personhood within the meaning of Article 70.
“This court should reverse and remand with an Order for the Supreme Court to issue the Order to Show Cause and proceed under Article 70.”
Outside the courthouse, Wise told reporters that even if this appeal fails, that’s not necessarily the end of Tommy’s chances. “If we lose, then we seek to take it up to the Court of Appeals,” he explained.
Either way, Wise said he hopes that, as a “legal person”, Tommy will soon be able to retire to Florida – just as many other New Yorkers are entitled to do!