Steven Wise originally hoped to file lawsuits on behalf of seven chimpanzees being held in captivity, arguing that the animals were unlawful prisoners. That's not metaphorically speaking. Wise considers the primates -- some used for research at universities, others kept in various private facilities -- to be literal prisoners.
But by the time the lawyer and longtime animal rights advocate was ready to file his writs of habeas corpus on behalf of all the known chimpanzees in New York, three had died.
"They were dying at the age of 26, and they should be living to the age of 60," Wise told The Huffington Post. "So we were quite concerned about that."
Wise, author of the book Rattling the Cage: Toward Legal Rights for Animals, is now in the process of filing several unprecedented lawsuits in New York state courts in the names of several fewer chimpanzees.
Brought with Wise's group -- the Nonhuman Rights Project, dedicated to advancing legal personhood for animals -- these suits cover what are now believed to be the Empire State's four captive chimpanzees: two who are being used in locomotion studies at SUNY Stony Brook; a former performing chimpanzee now housed near Niagara Falls; and a former film actor, Tommy, who is to be the first plaintiff. Wise states in court filings that Tommy is 26 years old and alleged to be living in "solitary confinement in a small, dank, cement cage in a cavernous dark shed" at a trailer sales business in upstate New York.
In Tommy's suit, filed on Monday against owners Patrick and Diane Lavery and Circle L Trailer Sales, Wise argues that because chimpanzees are "autonomous, self-determined, self-aware, intelligent, and emotionally complex" beings who cognitively "resemble human beings," they must be declared legal persons with rights by the court -- and as such, freed from captivity.
They would not be released to fend for themselves, of course; Wise is asking that the chimpanzees be sent to a primate sanctuary. In fact, what rights beyond being freed from captivity chimpanzees would be accorded, exactly, if they were found to be legal persons is still an open question, Wise said, largely to be determined through future litigation.
"They're not really human rights at that point. They're chimpanzee rights," he said. "What chimpanzee rights are appropriate for chimpanzees? If you're suing, if you're using case law, then it's one case at a time."
Here's how Wise makes the case for chimpanzee personhood in the first lawsuit (advance copies of the filings were provided to HuffPost):
New York has always recognized the common law writ of habeas corpus and there is no question this Court would release Tommy if he were a human being, for his detention grossly interferes with his exercise of bodily liberty. The question before this Court is not whether Tommy is a human being -- he is not -- but whether, like a human being, he is a “legal person” under the law of New York, possessed of the common law right to bodily liberty protected by the common law writ of habeas corpus.
“Legal person” has never been a synonym for “human being.” It designates Western law’s most fundamental category by identifying those entities capable of possessing a legal right. “Legal personhood” determines who counts, who lives, who dies, who is enslaved, and who is free. A being, such as Tommy, who possesses autonomy, self-determination, self-awareness, and the ability to choose how to live his life, must be recognized as a common law “person” in New York, entitled to the common law right to bodily liberty protected by the common law writ of habeas corpus.
The lawsuit comes at a promising time. Earlier this year, The Week examined the current politics of primate personhood and found huge steps forward in the last two decades, pushed along by the writings of Australian philosopher Peter Singer and Italian philosopher Paola Cavalieri:
Since then, a movement has taken root to urge governments and the United Nations to grant legal rights to chimpanzees and other great apes, banning their captivity in zoos and circuses and their use in medical testing for diseases like AIDS or hepatitis. New Zealand extended personhood rights to great apes in 1999, and Spain followed suit in 2008. The U.K., Sweden, Austria, Belgium, and the Netherlands have also banned research on apes for ethical reasons.
In the U.S., the federal government earlier this year announced its intention to house chimpanzees in more "natural" facilities, as well as to reduce the use of these primates in medical research, citing both technological improvements and ethical considerations.
Chimpanzees' "likeness to humans has made them uniquely valuable for certain types of research, but also demands greater justification for their use," Francis Collins, director of the National Institutes of Health, said in a June 2013 statement. "After extensive consideration with the expert guidance of many, I am confident that greatly reducing their use in biomedical research is scientifically sound and the right thing to do."
There are skeptics, including people who worry that legal personhood for animals would lead to the end of valuable medical research or the closure of all zoos, which, perhaps paradoxically, could be bad for some species of animals.
“We need to study these animals to help them,” Steve Feldman, spokesman for the Association of Zoos and Aquariums, told the Boston Globe for a July story about the Nonhuman Rights Project. “There are some people who believe that animals should be free, including free to become extinct.”
Even among some who are otherwise sympathetic to the underlying cause, doubts have been raised. For example, in 2000, then-University of Chicago law professor Cass Sunstein wrote in a New York Times review of Rattling the Cage that focusing on chimpanzees' remarkable mental capabilities was unnecessary. Sunstein suggested that their capacity for suffering should be sufficient to gain them greater protection. In other words, wouldn't it be possible to continue thinking of chimpanzees as "things" under the law, but expand their protection under animal cruelty laws?
"Legal persons count, whether they are rivers, religious idols, holy books, former slaves, corporations, fetuses, or human beings; 'legal things' don’t," Wise writes in Tommy's habeas petition. "The historic question before this court is whether Tommy, an illegally imprisoned chimpanzee, is a legal person who 'counts' for the purpose of a common law writ of habeas corpus in the state of New York."
Drawing on court decisions to protect the rights of women, racial minorities and "humans who have never been sentient nor conscious nor possessed of a brain," Wise argues that it would be arbitrary, illogical and maybe even dangerous to deny chimpanzees similar protection. "The act of denying equality in order to enslave, based on a single trait," Wise writes, "jeopardizes the equality of everyone."
Of course, since the single trait here is a very significant one -- being a chimpanzee rather than being a human being -- these are arguments and comparisons that Wise acknowledges may ruffle some feathers. They may not even be successful in this particular set of cases or for these particular chimpanzees.
Monday's court filing is likely just the first step in what Wise predicts will be a "long struggle" of strategic litigation to get animals other than humans recognized as persons under the law.
"Frankly, we're not even sure if we expect to win these first cases," he said. "I think the legal arguments are so strong, and the facts we're bringing are so powerful, that I think it's going to catalyze a very serious debate. And I think that can only help us."
Patrick Lavery, who owns Tommy, told HuffPost by phone that he wasn't aware of the lawsuit and that he was concerned about the prospect of Tommy being taken away. (Wise said that his people had previously tried to get in touch with Lavery to find out more about Tommy, but that they had received no response.) The chimpanzee is a happy animal who prefers people to other primates, Lavery said, and who has cable TV in his enclosure where he watches cartoons and his own movies.
"They're pretty much like humans, really," Lavery said. "They get attached to you. The worst thing you can do to a chimp, especially one that's people-oriented or attached to people, is take him away from his surroundings. Because they'll literally die of sadness."
Lavery was on his way to Florida for the winter, where he'd been exhibiting some reindeer and preparing the paperwork to bring Tommy down south in about a year as well.
"We've got a place for him in Florida," said Lavery. "That's going to be his retirement home ... We tried placing him different times in sanctuaries and like that, but all the sanctuaries were full."