Tuesday, May 8, 2018
The New York Court of Appeals denied habeas relief with a concurring opinion from Judge Fahey
In these habeas corpus proceedings brought by petitioner Nonhuman Rights Project on behalf of Tommy and Kiko, two captive chimpanzees, petitioner seeks leave to appeal from an order of the Appellate Division, First Department affirming two judgments of Supreme Court declining to sign orders to show cause to grant the chimpanzees habeas relief. The adult chimpanzees, according to the habeas petition, have been confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area, respectively...
However, I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing? “A person illegally imprisoned or otherwise restrained in his liberty within the state, or one acting on his [or her] behalf . . . may petition without notice for a writ of habeas corpus to inquire into the cause of such detention and for deliverance” (CPLR § 7002 [a]). The lower courts in this appeal and related cases, in deciding that habeas corpus is unavailable to challenge the legality of the chimpanzees’ confinement, rely in the first instance on dictionary definitions. The habeas corpus statute does not define “person,” but dictionaries instruct us that the meaning of the word extends to any “entity . . . that is recognized by law as having most of the rights and duties of a human being” (Black’s Law Dictionary [10th ed 2014], person ; see also e.g. Oxford English Dictionary, http://www.oed.com [last accessed May 4, 2018], person  [“An individual . . . or corporate body . . . recognized by the law as having certain rights and duties”])...
The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self-awareness and self-control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by selfinitiating intentional, adequately informed actions, free of controlling influence...
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 (see generally Regan, The Case for Animal Rights 248-250).
The Appellate Division’s approach to these proceedings is mistaken in another respect. Petitioner seeks the transfers of the chimpanzees to a primate sanctuary, rather than the wild. The Appellate Division held that habeas relief was properly denied, because petitioner “does not challenge the legality of the chimpanzees’ detention, but merely seeks
their transfer to a different facility” (Nonhuman Rights Project, Inc., 152 AD3d at 79; see also Matter of Nonhuman Rights Project, Inc. v Presti, 124 AD3d 1334, 1335 [4th Dept 2015], lv denied 26 NY3d 901 ). Notably, the Appellate Division erred in this matter, by misreading the case it relied on, which instead stands for the proposition that habeas corpus can be used to seek a transfer to “an institution separate and different in nature from the . . . facility to which petitioner had been committed,” as opposed to a transfer “within the facility” (People ex rel. Dawson v Smith, 69 NY2d 689, 691 ). The chimpanzees’ predicament is analogous to the former situation, not the latter.
The reliance on a paradigm that determines entitlement to a court decision based on whether the party is considered a “person” or relegated to the category of a “thing” amounts to a refusal to confront a manifest injustice. Whether a being has the right to seek freedom from confinement through the writ of habeas corpus should not be treated as a simple
either/or proposition. The evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.