New York Court Fails to Grant Captive Chimps Tommy and Kiko Legal Personhood

For half a decade, the Nonhuman Rights Project fought to win personhood rights for two captive chimpanzees in New York. On May 8, 2018, the State of New York Court of Appeals ended that struggle by denying them the ability to appeal a negative lower court decision.

Despite that disappointing outcome, however, real change could be on the way.

Tommy and Kiko live alone in locked cages. Tommy reportedly lives in a cage behind Circle L Trailer Sales on Route 30 near Gloversville, New York. And Kiko  allegedly lives in a cage that sits in a shoddy looking storefront in Niagara Falls, New York.

Both chimps lack the companionship of other chimps and the natural habitat they need to flourish. Thanks to this court ruling, unfortunately, they’ll remain in captivity.

That said, the appeals court decision is not the end of the story by a long shot. One of the five justices on the panel, James Fahey, was clearly disturbed by this outcome. He issued a concurring opinion that could serve as a foundation for future recognition of the right to animal personhood.

The lower court denied the Nonhuman Rights Project’s request for writs of habeas corpus on behalf of the two chimps on the grounds that they were not legal persons. The opinion of the State of New York Court of Appeals refused to allow NHRP to appeal.

Justice Fahey joined in that outcome, and he could have just left it at that — but he didn’t.

Fahey issued a concurring opinion that, by any measure, is monumental. He noted that the ruling “is not a decision on the merits of petitioner’s claims.” In other words, this was a decision based on certain legal details — technicalities — not on the ultimate point being made on behalf of Tommy and Kiko.

Then Fahey laid bare his deep concerns about this outcome:

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?

The Appellate Division’s conclusion that a chimpanzee cannot be considered a “person” and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species. But in elevating our species, we should not lower the status of other highly intelligent species.

Remember that legal “personhood” is not limited to human beings. Corporate entities and states or nations can be persons under the law. You also don’t even need to be a responsible, aware adult human to be a “person.” Children are persons. Comatose patients are persons. Being a person, legally, encompasses a great deal of territory and a variety of contexts.

tommy in cage

Tommy in his cage. Photo credit: Nonhuman Rights Project

Where do animals fall on that spectrum? Certainly they should not simply be thought of as “things” we can buy or sell. Animals have thoughts, emotions, instincts, social connections and a strong desire to live and survive.

By any objective observation, they are more like humans than they are like a coffee table or a lamp. Just because we’re able to enslave them and bend them to our will doesn’t make it right to do so.

As Jeff Sebo, director of New York University’s animal studies program, writes in The New York Times:

The problem is that under current United States law, one is either a “person” or a “thing.” There is no third option. If you are a person, you have the capacity for rights, including the right to habeas corpus relief, which protects you from unlawful confinement. If you are a thing, you do not have the capacity for rights. And unfortunately, even though they are sensitive, intelligent, social beings, Kiko and Tommy are considered things under the law.

In response, the Nonhuman Rights Project is taking a bold position: It is arguing that if every being must be either a person or a thing, then Kiko and Tommy are persons, not things. I agree, and many other philosophers do, too.

Photo credit: Thinkstock

Photo credit: Thinkstock

Justice Fahey’s closing words are critically important:

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.

Tommy and Kiko may have lost this battle, but Justice Fahey just helped them take a monumental step toward winning the war. Finally, we have a legal opinion that gives thoughtful consideration to the issue of personhood. It recognizes the issue can’t be as black and white as our legal system to date has held it to be.

“Chimpanzees share at least 96 percent of their DNA with humans,” Justice Fahey wrote. “They are autonomous, intelligent creatures. To solve this dilemma, we have to recognize its complexity and confront it.”

Indeed, we do.

Thank you, Justice Fahey, for being willing to issue an opinion in this case that formally lays out your concerns and doubts for all to consider. Tommy and Kiko are not merely “things,” even though we can’t yet legally call them persons.

One day perhaps they will indeed win a legal status that will free them from their cages and send them to happier lives at a chimpanzee sanctuary. And it cannot happen soon enough.

Photo credit: Thinkstock


Marie W
Marie W3 months ago

thanks for sharing

Pat P
Pat P8 months ago

Anyone that cares about animals has to be very saddened at the sight of these two caged chimps. Why shouldn't these intelligent creatures, an animal so similar to human animals (but in many ways and many cases, far superior) be given rights that will protect them from being treated as property with no dignity of their own?! As long as the objectivity of these animals continues to primarily define them, animal cruelty will be a major issue. It is entirely too easy to ignore animal welfare laws--the majority of people, worldwide, already don't, and those laws will NOT protect them from illegal confinement. A more lofty goal, although difficult to achieve, is the best way to give them their well-deserved individual respect and dignity--not just, animal welfare.

We allow corporations, states and nations to be considered persons (legally)--but NOT Tommy and Kilo, with thoughts and feelings, as sensitive, intelligent and social beings. They will continue to suffer, along with millions of other animals--because so many "humans" can't tolerate the competition--denying them the ability to appeal a poorly-determined lower court decision, therefore allowing a "human" (no matter how inferior) to continue treating them as "things".

They are NOT things, don't resemble an object and should NOT be defined or treated as one. They deserve their own legal personhood category with their own applicable right. Without this, they are not protected fr

Veronica D
Veronica Danie8 months ago

Thank you so very much.

Veronica D
Veronica Danie8 months ago

Thank you so very much.

Veronica D
Veronica Danie8 months ago

Thank you so very much.

Chrissie R
Chrissie R8 months ago

We should be campaigning for animal WELFARE instead of rights or "personhood".

Shirley S
Shirley S8 months ago

We want them free NOW !

Christine S
Christine Stewart8 months ago

Can they force the cruel people who keep these animals in cages to at least given them better living conditions?

Colin C
Colin C8 months ago

It is just so cruel keeping this chimps in cages

Nicole H
Nicole Heindryckx8 months ago

Chimps, bonobos and gorillas have nearly the same DNA as people. They live & search for food together, communicate together, fight or make up and love just as we do, they show compassionate and empathy (some people don't know what that means) they work together for the prosperity of all, they have, show and share feelings and do a lot of other things which we do. Depending on where they live, they have their own methods to enjoy certain food, and learn from each other how to obtain it the easiest way, or how to reach them, aso.. If a chimp or bonobo had no intelligence, how could they learn from other members in the group what food is good for them. Not only from their mothers. They look how others do it,and after hard trying, they can do it themselves.
So although they are not "human" they are NOT that far away from us. In a certain way, they are better as they don't kill each other for NO reason at all. There may be a fight to possess a plot of land with more food for them. But they never kill brothers, sisters, nieces and nephews just to prove they are the best. They may have a fierce fight, but there is no WAR with lots of deaths. NO ANIMAL is doing that !! Therefore they NEED TO HAVE THEIR RIGHTS just as we do. They DESERVE THAT !!