NhRP Statement on NY Court of Appeals Decision in Chimpanzee Rights Cases
Litigation - Article Series from All-Creatures.org Articles Archive


The Nonhuman Rights Project
May 2018

An Associate Judge on New York’s Court of Appeals issued an opinion that is already being seen as an historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals.

nonhuman rights project

May 8, 2018—New York, NY—Today, Eugene M. Fahey—an Associate Judge on New York’s highest court, the Court of Appeals—issued an opinion that is already being seen as an historic mark of progress in the fight to secure fundamental legal rights for nonhuman animals.

Without giving a ground for its action, the Court of Appeals as a whole again refused to hear our motion for further review of a lower court decision on behalf of chimpanzees Tommy and Kiko. This in itself is not significant insofar as the Court of Appeals rejects the vast majority of motions it receives for permission to appeal.

But Judge Fahey’s concurring opinion makes clear that the decision not to hear Tommy and Kiko’s cases was not made on the merits of the NhRP’s claim.

Judge Fahey rightly asserts that the failure of the Court to grapple with the issues the NhRP raises “amounts to a refusal to confront a manifest injustice” for the question of nonhuman animals’ legal personhood and rights constitutes “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.”

Further, Judge Fahey’s opinion makes clear that each of the three intermediate New York appellate courts that have ruled against the NhRP over the last four years were wrong. These include rulings that disqualified chimpanzees from eligibility for habeas corpus merely because they are not human, when what the lower courts should have done was to have “assessed the intrinsic nature of chimpanzees as a species.” The NhRP has repeatedly pointed out these errors over the last three years as we have fought for the recognition of Tommy and Kiko’s legal rights over the length and breadth of New York State, while demanding that the New York courts before which we have appeared instead engage in the mature weighing of public policy and moral principle that this urgent moral and legal issue demands and these imprisoned chimpanzees deserve.

Judge Fahey concludes his opinion with a striking personal reflection that allows us to glimpse how a superb common law judge intellectually and emotionally confronts novel and important legal questions over time: “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.”

We commend Judge Fahey for his willingness to see our nonhuman clients for who they are, not what they are, and his acknowledgement of the importance and urgency of what we and so many other advocates around the world are fighting for. This opinion should give hope to anyone who knows the time has come for fundamental change in how our legal systems view and treat nonhuman animals. We also thank the habeas corpus experts (Laurence Tribe, Justin Marceau, Samuel Wiseman, and the Center for Constitutional Rights) as well as the 17 philosophers who submitted amicus curie briefs in support of the NhRP in these cases.

At the same time, we lament that the Court of Appeal’s denial of our motion for leave to appeal means that Tommy and Kiko will have to wait even longer to regain the liberty that was taken from them decades ago. But, as is always the case, we’ll never stop fighting for our nonhuman animal clients, and we’re going to continue to work to free them to Save the Chimps sanctuary, the premiere chimpanzee sanctuary in North America, where they’ll be able to live and move freely for the first time in their lives.

CASE NO. Tommy: Index. No. 162358/15 (New York County)/Kiko: Index. No. 150149/16 (New York County)

CASE NAMES: THE NONHUMAN RIGHTS PROJECT, INC., on behalf of TOMMY, Petitioner-Appellant, -against- PATRICK C. LAVERY, individually and as an officer of Circle L Trailer Sales, Inc., DIANE L. LAVERY, and CIRCLE L TRAILER SALES, INC., Respondents-Respondents.

THE NONHUMAN RIGHTS PROJECT, INC., on behalf of KIKO, Petitioner-Appellant, -against- CARMEN PRESTI, individually and as an officer and director of The Primate Sanctuary, Inc., CHRISTIE E. PRESTI, individually and as an officer and director of The Primate Sanctuary, Inc., and THE PRIMATE SANCTUARY, INC., Respondents-Respondents.

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