Tommy the chimpanzee is the Nonhuman Rights Project’s first client. From the conclusion of his case in 2018 until very recently, it was unknown where he was imprisoned or if he was alive. Below is a detailed narrative of Tommy’s life, showing what happens when a chimpanzee is treated as a rightless “thing.”
Biography
It is unknown when or where Tommy was born. The likeliest of scenarios places his birth in Amenia, New York, on a property owned by the notorious and now deceased chimpanzee trainer, Dave Sabo. Likely born in the early 1980s, Tommy was almost certainly taken from his mother shortly after birth and hand-reared by humans. Although it is unknown if he was raised alongside other chimpanzees, Tommy’s living conditions were reprehensible. In December of 1984, Mr. Sabo’s chimpanzee housing facility caught fire resulting in the on-site death of five chimpanzees, the protracted death of an unknown number of chimpanzees, and injuries so extensive to some of the surviving chimpanzees that plastic surgery was required. Firemen ultimately dragged twenty unconscious chimpanzees from Mr. Sabo’s facility. Tommy, at only a few years of age, was likely a witness to much of the terror that occurred during the fire. He might have been one of the twenty unconscious chimpanzees rescued that day.
In 1985 and again in 1986, Dr. Moti Pinjani of the United States Department of Agriculture (USDA) conducted site inspections at Mr. Sabo’s previously burned-out facility. Dr. Pinjani’s findings were jarring even for the usually apathetic USDA. Dr. Pinjani issued Mr. Sabo a letter of non-compliance as to the Animal Welfare Act, which ultimately lead to protracted litigation between the USDA and Mr. Sabo. What did not occur were improvements to the living conditions for Mr. Sabo’s chimpanzees. As Dr. Pinjan observed in 1986:
[T]here is no protection of feed supplies against infestation or contamination by vermin … Animal and food remains … Static air, definite odor and ammonia build-up … Rooms dark … visibility of chimps poor. No lights provided inside the rooms … No drains or traps … All kinds of trash both inside and outside animal rooms … No TB test records. No visit record by vet … No records on chimps. No records of business transactions or earnings from shows.
Tommy, anywhere from two to six years of age, was living in these conditions.
If watching his friends and family burn to death was not traumatic enough, Tommy was soon performing in Mr. Sabo’s circuses, in films, and in television shows. These forced performances led Tommy to the role of “Goliath” in 1987’s Project X starring Matthew Broderick. The conditions on the set of Project X were allegedly so bad for the chimpanzees that animal activist and TV icon Bob Barker offered a cash reward for information related to the abuses endured by the nonhuman animal actors. Among other accusations was the alleged use of blackjacks, clubs, and cattle prods to beat and torment misbehaving chimps, including Tommy. Several workers reported that the beatings probably resulted in the deaths of at least two chimpanzees.
When the NhRP found Tommy on a used trailer lot along Route 30 in Gloversville, New York, it had been over twenty-five years since the filming of Project X. As it is impossible to know what Tommy’s life was in the intervening decades, one can only speculate as to the torturous existence he endured.
When Mr. Sabo died in 2008, his ownership of Tommy and the other surviving chimpanzees was transferred to Patrick Lavery; Mr. Lavery owned the Gloversville used trailer lot upon which Mr. Sabo lived out his final years. The transfer of ownership meant no relief for Tommy as his living conditions remained essentially unchanged. Tommy was imprisoned in a steel-mesh cell, in a windowless shed, on a trailer lot. The cell had a concrete floor and a concrete wall painted to look like a jungle—the only imitation of a chimpanzee’s natural habitat Tommy received. Eventually, the other chimpanzees died, leaving Tommy totally alone. Writing for The New York Times Magazine, Charles Siebert described a “rancid milk-musk odor,” “some plastic toys … bits of soiled bedding” and a single “visible light emanat[ing] from a small portable TV on a stand outside [Tommy’s] bars.”
No trees to climb.
No grass to walk on.
No sunshine, breeze, or fresh air.
No members of his own species with whom to interact.
All this was (and still is) perfectly legal under animal welfare laws, and Mr. Lavery’s public statements suggest he saw no issues with these conditions. “He’s really got it good,” Lavery once said when the Times Union asked him to comment on our lawsuit. “He’s got a lot of enrichment … He’d rather be by himself.”
Had Tommy been born in the wild, his home would have been one of the twenty-one African countries in which free-living chimpanzees are still found. Instead of being raised by Mr. Sabo, Tommy would have spent the first seven years of his life alongside his mother. Instead of watching his cellmates burn alive, he would have learned communication skills much like those of humans: kissing, embracing, patting on the back, touching hands, and even tickling. Chimpanzees laugh when they play; Tommy would have been no different. Instead, he was beaten with clubs and shocked with cattle prods when he did not follow a filmmaker’s instructions. If Tommy had the life he was entitled to, his days would have been defined by “secondary re-growth forests, open woodlands, bamboo forests, swamp forests, and even open savanna with bands of riverine forest and forest savanna mosaic”; not a concrete prison cell without natural light.
The NhRP’s Legal Representation of Tommy
Tommy’s Case History
On December 2, 2013, in a first of its kind case, the NhRP submitted a petition for a common law writ of habeas corpus in the Supreme Court of Fulton County, New York. The petition demanded the recognition of Tommy’s legal personhood and immediate release to an appropriate sanctuary. In discussing the novelty and magnitude of the filing, NhRP President and Founder Steven M. Wise (Steve) noted that “no one has ever demanded a legal right for a nonhuman animal, until now.” The Fulton County Supreme Court Justice, Joseph M. Sise, held an hour long-hearing, at the end of which he offered his support for Tommy but denied the petition:
Your impassioned representations to the Court are quite impressive … 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. As an animal lover, I appreciate your work.
On January 10, 2014, the NhRP filed a request to appeal its case with the Appellate Division of the Third Judicial Department.
The NhRP also sought a preliminary injunction to prevent Mr. Lavery from removing Tommy from the state of New York prior to the conclusion of the case. On June 9, 2014, the Third Judicial Department granted the motion for a preliminary injunction, finding that the NhRP had demonstrated it was likely to prevail on the merits of the appeal and that irreparable injury to Tommy was possible if the injunction was not granted.
The NhRP’s appeal was ultimately granted and on November 8, 2014, the court heard arguments to determine if Tommy would be freed from Mr. Lavery’s possession. In front of five appellate judges and a full courtroom of spectators, Steve argued for twice the amount of time originally allotted for the hearing. In a significant misapplication of the law, the court ultimately ruled that Tommy “is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus” primarily because “unlike human beings, chimpanzees can’t bear any legal duties, submit to societal responsibilities, or be held legally accountable for their actions.”
Citing the Third Judicial Department’s many errors, the NhRP then filed a motion with the same department for permission to appeal to New York State’s highest court, the Court of Appeals. On January 30, 2015, the Third Judicial Department denied the NhRP’s request to appeal so on February 23, 2015, the NhRP filed a motion for leave to appeal directly with the Court of Appeals. To accompany the NhRP’s February 23rd request, legal scholar and Carl M. Loeb University Professor and Professional of Constitutional Law at Harvard University, Laurence H. Tribe, submitted an amicus curiae brief. The Center for Constitutional Rights––a leading legal advocacy organization on issues of civil liberties and human rights––also submitted an amicus curiae brief in support of the NhRP’s request. On September 1, 2015, the Court of Appeals denied the NhRP’s request to appeal.
On December 4, 2015, the NhRP filed a new habeas corpus petition on behalf of Tommy. This time in the Supreme Court of New York County. The petition once again demanded Tommy’s release from unlawful detention. On December 23, 2015, Justice Barbara Jaffe denied the NhRP’s petition, finding that “to the extent that the courts in the Third Dept. [already] determined the legality of Tommy’s detention, an issue best addressed there, & [where the new petition is] absent any allegation or ground that is sufficiently distinct from those set forth in the first petition.” In other words, Justice Jaffee denied the filing because she believed it was duplicative of the first filing on behalf of Tommy. On October 28, 2016, the NhRP appealed this decision, and one day later, the Appellate Division of the First Judicial Department agreed to hear the case.
Various legal scholars, constitutional law professors, and criminal law professors from around the country requested leave to file amicus curiae briefs in support of Tommy’s case. Among the many well-informed individuals who submitted briefs were legal scholars Justin Marceau (Professor of Constitutional and Criminal Law at University of Denver Sturm College of Law) and Samuel R. Wiseman (Professor of Constitutional and Criminal Law at Florida State University College of Law). Marceau and Wiseman drew attention to habeas corpus’ history and how habeas corpus has regularly been used by humans to challenge unjust imprisonments. For example:
While the Writ has helped exonerate hundreds of innocent human beings from unjust incarceration, this brief argues that the time has come to consider its purpose in the context of other unjustly incarcerated beings. Nonhuman animals are unquestionably innocent. Their confinement, at least in some cases, is uniquely depraved; and their cognitive functioning and their cognitive harm as a consequence of this imprisonment, is similar to that of human beings. Tommy is an innocent being who is being actively and unjustly confined. Unless this Court allows Tommy to use the Writ of Habeas Corpus to require his captors to justify his imprisonment, he will be unjustly confined for the remainder of his life.
The First Judicial Department scheduled oral arguments for March 16, 2017.
In a joint hearing for Tommy and Kiko (another of the NhRP’s chimpanzee clients, and whom we recently learned has died [LINK]), Steve argued that the capacity to bear duties and responsibilities is not a legally acceptable reason for denying recognition of Tommy’s (and Kiko’s) personhood. Requiring the capacity to bear duties as a precondition for personhood (as the Third Judicial Department had found), “[would deprive] millions of humans in New York the ability to go into court” under habeas corpus because infants, children, and the infirm cannot realistically bear social duties and responsibilities. Steve pointed out that chimpanzees can bear duties and responsibilities within their communities and says claiming otherwise is “biased and arbitrary.” The Third Department ruling was “irrational,” he told the court. “It was unfair, and it’s not backed up by science.”
On June 8, 2017, the court ruled that the NhRP could not seek a second writ of habeas corpus on behalf of Tommy (and Kiko). In response, the NhRP asked the court for permission to appeal its case to the Court of Appeals. Predictably, the First Judicial Department denied the NhRP’s motion. On February 21, 2018, the NhRP once again asked the New York Court of Appeals directly if it could appeal the case. With amicus curiae briefs from the foremost habeas corpus experts and constitutional law experts pouring in, the Court of Appeals still denied the NhRP’s request to appeal. However, the May 8, 2018, decision by the Court of Appeals—although disappointing and, effectively the end of Tommy’s (and Kiko’s) litigation—was not without note.
Judge Eugene M. Fahey’s Opinion
Rarely seen in cases where the Court denies a request to appeal, one of the Court’s judges issued a separate concurring opinion. In his concurrence, Judge Eugene M. Fahey recognized that the failure of his Court to grapple with the issues the NhRP raised “amounts to a refusal to confront a manifest injustice.”
Judge Fahey’s cogent critique of the issues in Tommy’s (and Kiko’s) cases is unambiguous. Judge Fahey emphasized the “inadequacy” of the law to address some of society’s most urgent questions regarding the legal status of nonhuman animals. He importantly noted that his decision to deny Tommy (and Kiko) relief was not based on the facts of the case, but a procedural restriction. He called into question the courts’ preceding decisions, and ended his concurring opinion with a striking personal reflection. Whether in combination or as standalone anecdotes, Judge Fahey’s words provide a rare glimpse into how an exceptional common law judge intellectually and emotionally confronts novel and important legal questions. His opinion may one day be viewed as a turning point in the fight to secure fundamental legal rights for nonhuman animals.
Judge Fahey began his concurrence by noting that “[t]he inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter.” He continued:
I write to underscore that denial of leave to appeal is not a decision on the merits of petitioner’s claims. The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or property, in essence a thing?
Judge Fahey next took issue with the Third Judicial Department’s “legal duties” analysis. In echoing the NhRP’s arguments that the ability to bear societal duties is not (and cannot be) determinative of legal personhood, Judge Fahey drew attention to members of the human population who are unable to bear said duties:
Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child … or a parent suffering from dementia. In short, being a “moral agent” who can freely choose to act as morality requires is not a necessary condition of being a “moral patient” who can be wronged and may have the right to redress wrongs.
Judge Fahey then doubled down on his disagreement with the Third Judicial Department’s decision by noting, “[t]he 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.” Through this observation, Judge Fahey drew attention to a flawed biological evaluation for determining an individual’s legal status. For example, if this reasoning were still used by courts today, various minorities would lose fundamental rights because of a biological characteristic not shared by a determining majority (i.e., skin color, eye color, hair color, sex, etc.).
Judge Fahey did more than define questions in need of answering. He provided the solution for answering these questions. Rather than look to biology to determine who should be entitled to fundamental legal rights, Judge Fahey argued, “[t]he better approach … is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to bodily liberty protected by habeas corpus.” Judge Fahey called this approach “one of precise moral and legal status” and the “one that matters here.” He continued by recognizing that “the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species.”
As for Judge Fahey’s own assessment of the “intrinsic nature of chimpanzees as a species,” he previewed his thoughts:
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? This is not merely a definitional question, but 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.
Judge Fahey also argued that it is not a “simple either/or proposition” that determines “[w]hether a being has the right to seek freedom from confinement through the writ of habeas corpus.” Judge Fahey emphasized that “[t]he evolving nature of life makes clear that chimpanzees and humans exist on a continuum of living beings. Chimpanzees share at least 96% of their DNA with humans. They are autonomous, intelligent creatures.” To solve the dilemma of whether individuals like Tommy should have certain fundamental rights protected by habeas corpus, judges must “recognize its complexity and confront it.”
Although Judge Fahey agreed with the Court’s decision to deny the NhRP’s second request to appeal Tommy’s case, he did admit that he “struggled with whether [it] was the right decision.” Judge Fahey concluded his concurrence with a call to action for his contemporaries:
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.
Where is Tommy Now?
Tommy is no longer in the custody of Mr. Lavery. On September 21, 2015, the Michigan Department of Agriculture & Rural Development (MDARD) approved transfer papers between Mr. Lavery and the DeYoung Family Zoo, which is located in Wallace, MI. The DeYoung Family Zoo is a roadside zoo that has been on the radar of People for the Ethical Treatment of Animals (PETA) for a number of years. It is yet another prison in a long line of exploitative entities that have defined Tommy’s sad life. The DeYoung’s have maintained they are not in possession of Tommy and have refrained from mentioning Tommy by name. Nevertheless, their attempts at concealing Tommy’s identity are readily apparent. For example, on July 1, 2015, prior to Tommy’s arrival at the DeYoung Family Zoo, the USDA conducted a site inspection of the property and recorded the presence of a single chimpanzee. Less than two months after Tommy’s transfer papers were approved, the USDA conducted a November 3, 2015 site inspection at the DeYoung Family Zoo and recorded the presence of two chimpanzees. On February 2, 2016, an anonymous caller phoned MDARD and reported that a chimpanzee at the zoo was “suffering.” On June 13, 2016, the USDA conducted yet another site inspection of the zoo and again recorded only two chimpanzees on the property.
All inspections of Mr. Lavery’s property after September 2015 have revealed that no chimpanzee is on site. On June 25, 2016, the results of a USDA animal welfare complaint investigation revealed that the DeYoung Family Zoo had “[two] male chimpanzees, Louie a juvenile and Billy an adult.” The same investigation resulted in an interview with licensee and zoo director Harold DeYoung. In the interview, Mr. DeYoung noted that “Billy is not on exhibit for his own safety, health, and well-being.” On December 27, 2016, the zoo filed a complaint against PETA. In what appears to be another attempt at concealing Tommy’s identity, the complaint acknowledged the DeYoungs were in possession of two chimpanzees but argued they “do not own or possess a chimpanzee named ‘Tommy’ but have a chimpanzee which shall be referred to herein as ‘Chimpanzee #2.’” This time, it seems, the DeYoung Family Zoo forgot it had originally changed Tommy’s name to Billy and not Chimpanzee #2.
On October 12, 2017, PETA submitted an animal welfare complaint to the USDA in which it demanded an inspection of the DeYoung Family Zoo for numerous and shocking animal welfare violations. Among PETA’s claims was a July 3, 2017, observation by a zoo attendee in which the witness documented the mistreatment of a male chimpanzee in a solitary enclosure. The witness claimed the chimpanzee was referred to as “Tommy.” Finally, on January 10, 2018, yet another USDA site inspection revealed that the zoo’s youngest chimpanzee, Louie, was being held in solitary confinement because the DeYoungs “were not able to successfully integrate him with the older adult male chimp.” Given Tommy’s background, his inability to cohabitate with other chimpanzees would be obvious.
Since January of 2018, the DeYoungs have acquired upwards of six additional chimpanzees making it nearly impossible to pinpoint whether Tommy remains at the DeYoung Family Zoo, has been illegally sold, or passed away (Since January of 2018 there have been no MDARD transfer papers showing a chimpanzee with Tommy’s description, or a chimpanzee from the DeYoung Family Zoo, being moved out of state). Based on the timeline above and conversations with persons knowledgeable about the situation, it is the NhRP’s belief that Tommy, if alive, remains in solitary confinement at the DeYoung Family Zoo.
Freeing Tommy
Based on the foregoing evidence, it is the NhRP’s belief that Tommy, if alive, is imprisoned at the DeYoung Family Zoo. The zoo no longer has chimpanzees on display to the public, so little is known about the nature of Tommy’s captivity or his physical and psychological health. Starting today, we are calling on the DeYoung Family Zoo to free Tommy to an accredited chimpanzee sanctuary. You can help Tommy in two ways: 1) if you are on Facebook, please send a polite message to the zoo and comment on their most recent post politely requesting that they free Tommy to an accredited chimpanzee sanctuary, and 2) complete this action alert asking MDARD to conduct an emergency inspection of the zoo to check on Tommy’s welfare. Please also share this blog on social media.