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 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

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