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Legal Whac-a-Mole

By Steven Wise

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.

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