Legal Whac-a-Mole

Yesterday, January 2, 2015, the last of three intermediate appellate courts weighed in on the initial habeas corpus lawsuits the Nonhuman Rights Project brought during the first week of 2013 on behalf of four chimpanzees, Tommy, Kiko, Hercules, and Leo, who were imprisoned in New York State. I therefore thought it a good time to stop and explain where we are in these early stages of the NhRP’s long-term strategic litigation campaign to break through the legal wall that separates all human “persons” from all nonhuman “things.”

The NhRP spent 30,000 hours preparing to bring these initial cases. We worked to imagine every argument that could be laid against us and rebut it in advance. Unfortunately no opponent filed a brief that might assist us in narrowing our arguments while no friend of the court brief materialized either. Since appellate court briefs have page limits we were required to emphasize those arguments we thought were most likely to catch the attention of the court.

Each court ruled against us, but on different grounds, none of which, we think, are legally sound.

We soon found ourselves locked in a short-term game of “Legal Whac-a-Mole,” as each court ruled against us, but on a different ground, none of which, we think, is legally sound.

The Second Department immediately threw out our appeal of the decision against Hercules and Leo on the ground we lacked even the right to appeal. We decided it would take too long to appeal this decision to New York’s High Court, the Court of Appeals. Instead we decided to re-file the habeas corpus action in another jurisdiction. That will happen within the next two weeks.

On December 4, 2014, the Third Department ignored the Second Department and threw out Tommy’s case on a different ground. It said that only an entity capable of assuming duties and responsibilities – not chimpanzees – could ever be a “person” able to have rights, but that humans incapable of assuming duties and responsibilities would be “persons” anyway. As this special pleading also contradicts a New York statute that give pets and domestic animals rights to the money held for them in a trust –  implicitly making them “persons” – and a 42-year-old Court of Appeals case that says that, in New York, who or what is a “person” is a matter of public policy and not biology, we immediately sought permission from the Third Department for leave to file an appeal to the Court of Appeals. That motion remains pending. If the Third Department refuses, we will ask the Court of Appeals itself for leave to appeal.

Yesterday the Fourth Department ignored both the Second Department and the Third Department. It threw out Kiko’s case not because the NhRP had no right to appeal and, significantly, not because Kiko could not be a “person.” It was, the court wrote, because not even a human being can use a writ of habeas corpus to move from a place of stark imprisonment to another place of vastly more freedom. (The NhRP is demanding that Kiko be moved from his solitary caged confinement to the spacious sanctuary of Save the Chimps in Fort Pierce, Florida, where he will live his life on a semi-tropical island surrounded by dozens of other chimpanzees.)

Every single one of the eight cases cited by the Fourth Department concerns a human prisoner convicted of a crime using a writ of habeas corpus for some other purpose other than seeking immediate release from prison. The Fourth Department’s decision treats Kiko as if he were a human prisoner convicted of a crime and ignores numerous cases spread over 200 years involving humans who were NOT prisoners convicted of a crime successfully using a writ of habeas corpus to move from one place to another. The NhRP will therefore be asking the Fourth Department for leave to file an appeal to the Court of Appeals within the next week. If the Fourth Department says “no,” we will ask the Court of Appeals itself for leave to appeal.

The NhRP may be playing Legal Whac-a-Mole for some time. But we want you, our supporters, to understand that when we speak about having embarked upon a long-term strategic litigation campaign, we mean it. We are also playing Legal Chess and we are in for the long game. And checkmate.

18 Responses to “Legal Whac-a-Mole”
  1. Julie says:

    Congratulations with every long, hard, difficult step you take, and for all the effort and love you are putting into this groundbreaking effort.

  2. Rose Star says:

    Thank you for your hard work. I am constantly stunned by the total lack of compassion and logic shown by judges and govt officials when it comes to animal rights. Surely as you get further up the ladder the people in authority will have more intelligence and logic and compassion.

  3. Lex Sisney says:

    I just want to say thank you for all of your amazing work and that this is a truly awesome and needed endeavor. It must be hard and frustrating to deal with so many conflicting stances from the courts. Thank you for all of your efforts.

  4. I believe justice is coming
    Never stop the truth

  5. Jan Call says:

    Cruelty is Cruelty whether it be human or nonhuman. What gives us the right to make the decision who escapes cruelty & who does not. Animals were put on this earth just like we were. They bleed & have feelings just like we do. I am thankful that I was born human, but feel so sorry that we have the right to torture our animal friends.

  6. Maria Celia says:

    Good day, NHRP, I want to thank you for the long fight for the sake of these chimpanzees, I believe the intention is to get these chimpanzees to be sent to the Sanctuary, all of them should go too the sanctuary that best takes care of them. Because of the tight to the person who bought them that gives them the right to keep them from been free at least in a bigger space .Fighting to give them the freedom they had when they where young it is hard .But I have fate that the leave from those places that are not right and not been healthy for those chimpanzees may get the peace they nee .,Even if they do not go back to their home habitat. Those animals deserve to be in a better place where they can be taken well care and they feel free from the grip they have been hold by. No animal is happy nor feel free if is chained, bitten ,and un feed. Without attention and care they need .Because while they are detained in those places the right of those chimpanzees is for those people to take good care of them ,give them the space and the liberty at least close to the one they had.and not abuse them. I believe that every animal from the wildlife should be left in their wildlife kingdom. Not where be in the hands of humans who use, abuse and kill them for their parts. These acts are criminal acts no matter if they are animals with rights or not. Their right were born with them when they habited where Nature gave them their specific home habitat strictly for their freedom and living nature. Best wishes for your hard work and the freedom, for these chimpanzees who deserve it.,Thank you again. MCH 1-5-2015

  7. Anna val says:

    Great job. Your commitment is commendable Do you think using same arguments and examples that were used to abolish slavery and give women rights would be if any help? After all slaves and women were considered propert as well at some point in time

  8. I wish NhRP all the best with its litigation efforts. You have my full support. However, referring to your legal predicament in terms of a “Whac-a-Mole” game is not a good idea. Although I understand the point being made, the use of “whacking moles” I don’t believe furthers the cause of animal rights and welfare. The language we use in regards to nonhuman animals matters a lot. I think your organization should be more sensitive about this issue. Thank you.

    • Nonhuman Rights Project says:

      Thank you, Rocco, for bringing this issue (re: whac-a-mole metaphor) to our attention and for your support for our work. It’s much appreciated!

  9. Robin Sharan says:

    I am following your work and am praying for your success in every way. May you be blessed immediately and abundantly. Thank you for standing up for those who cannot speak for themselves. Stop animal cruelty, human disease and global warming, be vegan..
    Thank you again and again.

  10. june lay says:

    The three rulings handed down hopefully will be overturned. While the rulings hopefully are found to be legally unsound, they certaintly are not based on common sense!

    I have to wonder how much personal bias has influenced these rulings.

  11. j tuttle says:

    Wow, I admire your tenacity and what you are doing. While I have not undertaken anything to the extent that you have, I have rescued, and sometimes placed (they often end up living with me) domestic pets for a number of years as well as have “trap-neuter-ear tip-release” feral cats.

  12. Tina says:

    Thank you for your courage, and for standing up for what is right. Eventually we will reach a tipping point. I pray that it is sooner, rather than later.

  13. Gretchen Stallworth says:

    Bless you for all the effort and strategy that you are putting into these cases. It is heartbreaking to read about the abuse these sentient creatures suffer for the amusement of humans. Also, if one needs to be human to assume rights and responsibilities, why then aren’t the caretakers of these animals taking responsibility for them? In Tommy’s case, his ‘owner’ clearly should be charged with animal cruelty, as it is patently inhumane to leave any animal in solitary confinement. Hopefully the courts will take the right and courageous stance of agreeing with your position.

    • Nonhuman Rights Project says:

      Hi Gretchen! Tommy’s “owner” cannot be charged with animal cruelty because the situation in which he has put Tommy (owning him as a pet, keeping him alone in a cage) breaks no laws. This is precisely why the NhRP seeks to persuade a judge to recognize him as a legal person with the fundamental right to bodily liberty. Thank you for your support!

  14. Elizabeth says:

    Thanks for doing what lots of us cannot do. So gad you are persistent. I do wha I can with my skills/talents, speak where I can and refuse to use animals as a resource. It will eventually b successful.

Leave A Comment