14 December 2013

Personhood and Nonhuman Animals

Noting judgments in New York Courts regarding three suits by the NonHuman Rights Project [NhRP] on behalf of four chimpanzees – Tommy, Kiko, Hercules and Leo – that the Project is  seeking to have released to sanctuaries.

The NHRP indicates that
These habeas corpus writs are a way of going before the court to argue that our chimpanzee plaintiffs are legal persons with the fundamental right to bodily liberty, based on their level of complex cognition, self-awareness and autonomy, rather than simply pieces of property that can be owned, imprisoned and used for experiments.
The writs have been rejected; no surprise to the NhRP, which is using them to appeal to US superior courts.
Expanding the common law of New York, which is what the NhRP is trying to do, is typically left up to the higher courts, in this case the Intermediate Appellate Court and New York’s highest court, the Court of Appeals. It’s also, in part, why we filed these first suits in New York State, which has an automatic right of appeal in habeas corpus petitions. These cases now move on to the New York Appellate Courts. What we were certainly hoping for was that if our petitions were denied, the rulings would be based on the judges’ views that chimpanzees cannot be considered “legal persons.” And that is indeed what happened. So the question of legal personhood is what will now be taken up in the appellate courts. One of the judges even went out of his way to give us the tools we’ll need for an appeal. In the case of Tommy, the Hon. Joseph Sise held an hour-long hearing and asked some of the key questions that enabled us to place on the record why Tommy should be considered a “legal person” and what are the grounds for him to have the fundamental right of bodily liberty.
In Tommy vs. Patrick C. Lavery, Individually, and as an Officer of Circle L Trailer Sales, Inc., Diane Lavery and Circle L  Trailer Sales, Inc [PDF] Steven Wise - author of several works on animal rights (for example noted here)  - indicates that
We brought a writ of habeas corpus because a writ of habeas corpus is aimed at the denial of a legal person, not necessarily a human-being, but a legal person's right to bodily liberty.
The judgment continues -
THE COURT: Do you have any authority under New York law or federal law that a legal person can be defined as chimpanzee or a chimpanzee can fit within that definition? Do you have any precedent?
MR. WISE: We do.
THE COURT: What's the name of the case?
MR. WISE: We cite cases in which various nonhumans have been held to be legal persons. Some of them are New York
THE COURT: You're talking about habeas corpus cases or no?
MR. WISE: No. There's not a habeas corpus case on that.
THE COURT: In what type of case has a nonhuman been held as a human-being?
MR. WISE: Well, aside from the average which is ships and corporations and partnerships  and states, there are also cases in other common law jurisdictions. There is an Indian Supreme ; Court case where the holy books of the Sikhs have been held to be a legal person. There's another Indian case with Hindu idols. There was a treaty last year between the Crown of New Zealand and the Maori Tribes in which a river was held to be a  legal person.  A legal person is not synonymous with a human-being, as we talked about in our memorandum. A legal person is an entity that the judicial system here -- we're asking this Court to begin to consider it, that the judicial system considers is important enough so that it's visible and its interest, whether it's a river or a Hindu idol or a holy book or corporation or -- and I must say, this Court also -- not this Court but this state was a leader in holding blacks in the antebellum north before the Civil War were also legal persons who were subject to writs of habeas corpus. The Lemmon vs. People case is probably the most famous and one of the strongest, most powerful statements...
THE COURT: Court's not even going to consider that as synonymous, so you'll have to use your other cases. I'm just telling you, the Court will reject that argument, the argument that the cases involving human-beings who were slaves in the 1800s as synonymous with a chimpanzee. I reject it. ...
MR. WISE: We're not comparing chimps to blacks. We are not at all. What we're doing is saying there's been a whole spectrum of legal things, and that includes rivers and idols and corporations and black slaves. And they have been able to in the appropriate cases argue that they are indeed legal persons, that their interests should be acknowledged and they should have the capacity to have certain kinds of rights. Now, we argue, Judge, and I think this is very important, number one -- there's two reasons why Tommy fits that. Number one, the Pet Trust Act in New York specifically says that an animal like Tommy can be the beneficiary of a trust. We have indeed set up a trust for Tommy. There has been -- the only case in New York under the Pet Trust statute indeed held that --
THE COURT: This is all in your papers, correct?
MR. WISE: Yup. THE COURT: Let's turn to the reason why you're here. What is it about Tommy and his treatment that causes you to seek this writ of habeas corpus?
MR. WISE: Thank you very much for asking. Your Honor, in March of this year, we decided that we wanted to file a writ of habeas corpus on behalf of two chimpanzees. In April --
THE COURT: "We" as in --
MR. WISE: "We," the Nonhuman Rights Project. Both of them are dead. We then were concerned about this and we identified all five chimpanzees who were alive in the state of New York. One of them have died. Three of the seven chimpanzees in the state of New York are now dead in the last seven months. We are now filing a lawsuit here on behalf of Tommy, we're filing another lawsuit in Niagara Supreme Court on behalf of Peto, and we're filing another lawsuit in the Supreme Court in Suffolk County on behalf of Hercules and Leo.
We believe that all chimpanzees in the state of New York should be declared legal persons, that there is ample precedent to do that. They already are legal persons under the Pet Trust statute. And if not -- or in addition to it, under the common law, they ought to be. They're fully autonomous, extraordinarily complex beings, and their autonomy, their ability to self-determine, ability to make choices -- that we wanted to file a writ of habeas corpus on behalf of two chimpanzees. In April --
THE COURT: Is that why you're making this argument, because the level of sophistication of a chimpanzee versus some other animal? Is that what your argument rests on? MR. WISE: There are two arguments.
THE COURT: No, no, no. The argument you just made.
MR. WISE: That part rests not on the general cognitive sophistication but on the fact that chimpanzees possess the autonomy that New York courts highly value in human-beings.
THE COURT: But you're not making your argument and differentiating the chimpanzee from other animals, are you?
MR. WISE: We are, Your Honor.
THE COURT: So it does matter, the cognitive ability of a chimpanzee, in your argument.
MR. WISE: Absolutely. My --
THE COURT: It would be important for you to understand what my questions are.
MR. WISE: Sometimes I don't get it, so --
THE COURT: Stop. I'll give you a full opportunity to be heard, but this is not a discussion. My question to you is you're differentiating chimpanzees from other animals. It's key to your argument. Right?
MR. WISE: We are differentiating.
THE COURT: A chimpanzee from a dog, from a horse, from a zebra, from --
MR. WISE: But you --
THE COURT: You haven't heard what I'm asking. You're doing it again.
MR. WISE: I apologize.
THE COURT: Sit down. Sit down, please.
MR. WISE: Yes, sir.
THE COURT: Here's my question. Perhaps you won't need to respond when you're sitting and then you can stand when you want to respond. It strikes me that you're making an argument and part of your argument - and I see that Ms. Stein and your associate are shaking their heads - that it's the level of sophistication of the chimpanzee that is important here, and so I am asking to flush out that issue as opposed to other animals. It's important as part of your argument that a chimpanzee is more sophisticated than other animals. And I'm asking, is that important to your argument? Because it sounds like that's what you're saying.
MR. WISE: We are saying that but not in a general manner of sophistication. It's because they are autonomous.
THE COURT: Says who? And I say that because -- I'm asking the question because that's beyond your ken and beyond my ken. It's beyond the ken of the normal fact-finder. You're stating something that only expert testimony could supply.
MS. STEIN: Yes, Your Honor. That is why, in fact, we have the affidavits attached to the petition and the memorandum of law from the most renown primatologists in the world. They are from Sweden, Germany, England, Scotland, Japan and five of them within the Continental United States.
THE COURT: So, what is it that you are asking the Court to do in terms of Article 70, make an exception for chimpanzees only?
MR. WISE: We are asking only that --
THE COURT: You understand the question, right, the legal reasoning or the legal conundrum the Court is in based upon your argument?
MR. WISE: We are -- in a specific legal way, we're simply asking that you issue the writ of habeas corpus on behalf of Tommy; in a general way, on behalf of chimpanzees.
THE COURT: You're asking the Court to recognize chimpanzees over other animals and things as a person. That's what you're asking me to do --
MR. WISE: That's --
THE COURT: -- specifically for Tommy.
MR. WISE: Partly so, Your Honor. We are asking that -- we are saying that the reason that this Court should do that is Tommy, as these experts pointed out, is autonomous and that a chimpanzee, a gorilla and an orangutan, a bonobo, those are all the great apes, they are almost certainly as autonomous as Tommy is. But we don't know that. We haven't proven that. What we have proven clearly is that Tommy and chimpanzees are autonomous, and that's as far as we want to go. So, we are asking that this Court recognize that chimpanzees have what it takes for legal personhood within the meaning of the habeas corpus statute, which is autonomy, self-determination, self-agency, the ability to choose how to live their lives. That's what we're asking.
THE COURT: All right. Anything further?
MR. WISE: We have so much, Your Honor. We have a lot that we have to say, but I'm interested in specifically addressing any other questions you may have. We're asking that you issue the writ of habeas corpus, too, so that we can flush out what we think are very complex legally, interesting and significant issues; and that specifically we are concerned that Tommy is going to die and the other chimpanzees are going to die, like the three chimpanzees have died in the last seven months.
THE COURT: I think before we reach the merits -- and when I say the "merits," the merits of whether or not Tommy is being mistreated as a highly sophisticated animal, you first would have to meet the threshold that Article 70 should apply to a chimpanzee.
And so when I say "anything further," anything further on the argument of whether or not this Court should recognize Article 70 to include chimpanzee, specifically this chimpanzee, Tommy, as part of a protected class that can seek a writ of habeas corpus? Anything further in that regard?
MR. WISE: I do, Your Honor. So, the writ of habeas corpus says that anyone may seek a writ of habeas corpus when a person is being imprisoned. It does not say "human-being." It says "person." Part of our memorandum specifically points out that "human-being" is not a synonym for "person," "person" is not a synonym for "human-being." Throughout history, which we clearly pointed out, there have been human-beings who have not been legal persons for purposes of habeas corpus and there have been nonhuman-beings who are legal persons for purposes of writs of habeas corpus. There is some requirement other than being human, though we do believe and we would argue that -- at least in the year 2013, that being a member of the species homosapiens is indeed a sufficient condition for personhood, but there are other sufficient conditions for personhood, as well; and we would argue that based upon New York law common law, US Supreme Court has talked about common law, that indeed autonomy is one of the most highly protected attributes of human-beings. Court of Appeals of New York will allow you to die. They'll allow you to take your own life. They'll allow you to represent yourself in court, even though we all know you're going to lose. Autonomy is an extraordinarily important attribute, and we argue that autonomy -- that a being who is autonomous, who can choose, who is self-aware, these, Your Honor, are essentially us. They're so extraordinarily close to us.
We have presented 150 pages of affidavits from the world's greatest primatologists who set out in specific and even excruciating detail just how from language to culture -- these beings have cultures, there are cultures, they have language. They can use human language. They can use chimpanzee language. They are extraordinarily similar to us. And if we focus in on not just how they look, their brains are similar to us, the way their brains work are similar to us. They're essentially almost us. And if you focus on the issue of autonomy, self-determination, choice, that those are such powerful concerns of the courts of New York that a being who can demonstrate, which we do demonstrate, that they indeed have that autonomy, that is a sufficient condition for legal personhood.
Plus, under the Pet Trust statute, the New York legislature has already determined that they are legal persons, because Tommy is a beneficiary of a trust that we have created. We created it for him. He owns the corpus of his trust. He can sue. And, indeed, Attorney Stein is the enforcer of that Pet Trust statute. So he already has certain kinds of rights, and we're saying that he should also have the fundamental right to bodily liberty that protects his fundamental interest in bodily liberty.
Now, that is an argument as a matter of liberty. We have another argument under common law equality in New York that Tommy should -- the only reason that someone could not issue a writ of habeas corpus on behalf of Tommy is, one, that he is a chimpanzee. And we look at the case of Romer vs. Evans, and in Romer vs. Evans you have Justice Kennedy saying that -- striking down Amendment 2 of a Colorado constitution saying that to choose a single trait and essentially strip someone, in that case, gay human-beings of all their rights because they have a single attribute so fundamentally undermines the argument both from constitutional equality for our purposes, more importantly, from common law equality, that it is violative of equality. And the only difference -- essential difference between Tommy and myself is that I'm a human-being and Tommy is a chimpanzee. Other than that, autonomy has the self-determination, self awareness. We have probably 40 different attributes that show a complex cognition, a very complex one. He has essentially the same as we have.
And so not only as a matter of liberty, but as a matter of equality under the common law, Tommy should be entitled to be viewed as a legal person as well and he also for the exact same reasons should be entitled to the right to bodily liberty which the common law -- or the common law --
THE COURT: What's the standing?
MR. WISE: Standing -- actually, we have a section on standing, but, essentially, the writ of habeas corpus is a different sort of cause of action in that a person who is being imprisoned generally is not able to leave the place of imprisonment to come and seek a writ of habeas corpus. So what happens is that the usual standing requirements are exceedingly relaxed so that a third party -- in fact, under the statute, it says anyone can come in and seek a writ of habeas corpus on behalf of a person who is imprisoned. That's what we do. That's what the Nonhuman Rights Project does. But even if it wasn't, any person could come in and seek a writ of habeas corpus on behalf of Tommy under the statute as well as under the constitutional law.
THE COURT: The trust you say that's set up for this chimpanzee, has it been used by the owner of the chimpanzee or is it --
MR. WISE: The -- I am so sorry, Your Honor.
THE COURT: That's okay. Go ahead. You were going to answer. Go ahead.
MR. WISE: The answer is the trust is for the care and maintenance of Tommy, and so we have -- right now he's being treated as a legal thing. We hope he's going to be treated as a legal --
THE COURT: I'm sorry. Is the trust monies used for Tommy?
MR. WISE: Yes, Your Honor.
THE COURT: So the owner of Tommy has been using the money?
MR. WISE: Nope. There is no -- the trust is not for Tommy as a legal thing. Tommy cannot -- Tommy could not --
THE COURT: You said the trust is used for his care.
MR. WISE: No. The trust shall be used for his care.
THE COURT: So it hasn't been used yet.
MR. WISE: It hasn't been used for his care, because the Nonhuman Rights Project has spoken to -- has arranged with the North American Primate Sanctuary Alliance, who has a string of primate sanctuaries throughout the United States, they have several of them in which they have some spectacular sanctuary, they're going to take care of Tommy and we're going --
THE COURT: Has the owner been approached and will not sell Tommy, will not release Tommy? Has it even been approached?
MR. WISE: This owner has not been approached.
THE COURT: This owner has not been approached?
MR. WISE: Tommy is just there. We've seen him.
THE COURT: All right. What else? Anything else? Ms. Stein, anything else?
MS. STEIN: No, Your Honor.
THE COURT: Your impassioned representations to the Court are quite impressive. The Court will not entertain the application, will not recognize a chimpanzee as a human or as a person as a person who can seek a writ of habeas corpus under Article 70. 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.