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Tommy: A Missing “Thing” Who Should be a Missing “Person”

By Kevin Schneider


He didn’t ask for it, but Tommy has been a celebrity for much of his life.

In the 80’s, he starred alongside Matthew Broderick in the film Project X.

Later, he was a well-known circus performer in upstate New York.

After he ceased to be of use to the entertainment industry, he was forced to live in a cage on Patrick Lavery’s used trailer lot in Gloversville, New York.

There he lived with individuals who’d led similar lives. Eventually, his companions all died, leaving him with only a TV for company. In the middle of a lawsuit seeking his freedom, Tommy disappeared. Lavery claimed he sent Tommy to a roadside zoo in Michigan, but no one has seen him despite worldwide interest in his whereabouts, and neither the Michigan Zoo nor Lavery are saying a word.

It has proven impossible for anyone concerned about Tommy to find out where he is.

This is because Tommy is not a human being with the right not to be unjustly imprisoned, but a chimpanzee with no legal rights whatsoever.

Born at a chimpanzee breeding facility and believed to be in his mid-30’s, Tommy, like all nonhuman animals, has been considered the property of human beings for his entire life. He is a mere “thing” in the eyes of the law.

As long as Tommy’s human “owners” treated him according to minimum welfare standards, they could force him to perform, confine him to a cage, and keep him in solitary confinement—in other words, subject him to a life we would consider inherently cruel were he a human being.

Screen Shot 2016-09-05 at 11.18.52 AMLike human beings, he and all other chimpanzees are self-aware and autonomous. And like human beings, he and all other chimpanzees should be entitled to recognition of their fundamental right to bodily liberty on the basis of these qualities. That is the driving principle of the Nonhuman Rights Project (NhRP), which is leading the legal fight for Tommy’s freedom.

In the early years of his life, he was famous only because he was a source of amusement. He was a slave. Now, he’s in the spotlight because we at the NhRP—along with hundreds of thousands of people the world over—are calling for his freedom.

In late 2013, the NhRP filed a lawsuit on Tommy’s behalf, asking a New York judge to find that Tommy, as a self-aware, autonomous being, is a common law “legal person” protected by the writ of habeas corpus—an ancient legal device designed to guarantee all “legal persons” the right against unjust imprisonment.

We demanded that the court free him to a chimpanzee sanctuary not because his “owner,” Patrick Lavery, had violated any animal welfare statutes—he had apparently not—but out of respect for Tommy’s fundamental rights.

Tommy’s case—depicted in the new Pennebaker Hegedus Films/HBO documentary Unlocking the Cage—has been working its way through the New York courts ever since. In 2015, New York’s Third Department Appellate court held—in an unprecedented, erroneous, and potentially dangerous decision—that Tommy is not entitled to be recognized as a “legal person” with any legal rights because, as a chimpanzee, he is “unable to bear social duties and responsibilities.” The NhRP responded to this unprincipled ruling by gathering even more evidence from some of the world’s top primatologists, including Dr. Jane Goodall, that establishes that chimpanzees routinely bear duties and responsibilities, both among their own kind and in interactions with human beings (both in the wild and in captivity).

It was only after the NhRP filed a second case on Tommy’s behalf in December of 2015 that we learned of Lavery’s claim to have sent Tommy to the DeYoung Family Zoo in Wallace, Michigan in September of 2015.

Also in September of 2015, the US Fish and Wildlife Service (FWS) finally listed all captive chimpanzees in the US as “endangered” under the federal Endangered Species Act (ESA). You might think that this change would mean that Tommy would be protected from being surreptitiously moved with no obligation on the part of his “owner” to disclose his whereabouts. This is not the case. There is absolutely nothing that any third party—except for federal agencies that have historically shown little concern for primates who are caged alone—can do to ascertain his current location and the conditions in which he’s being kept, or even if he is still alive.

We repeatedly attempted to contact the DeYoung Family Zoo to determine if Tommy is indeed in their custody. In addition, The Dodo and the Daily Mail each dispatched reporters to the zoo to inquire about Tommy; the zoo denied any knowledge of him. The picture that has emerged should disturb anyone concerned about the harms that human beings inflict on nonhuman animals and the legal obstacles to vindicating nonhuman animals’ interests.

Despite Tommy’s endangered status, and the fact that we and many members of the public are concerned for his safety, neither the DeYoung Family Zoo nor Mr. Lavery is under any duty to report Tommy’s whereabouts. Mr. Lavery will confirm only that Tommy is alive. This is what it means to be a “legal thing” instead of a “legal person”: you can be bought, sold, traded, shipped, and confined all alone, without legal consequence.

This is precisely why the NhRP is asking courts to declare that Tommy is a “legal person” with at least the fundamental right to his bodily liberty. He belongs in a sanctuary, not hidden behind closed doors.

Our campaign to free Tommy from captivity will continue despite any legal obstacles we face. We also plan to take on even more nonhuman animals as plaintiffs, including our next lawsuits on behalf of captive elephants. As we continue to litigate we expect to catalyze a re-evaluation of the way the law views nonhuman animals such as Tommy—and an end to stories of nonhuman animal lives that begin as Tommy’s has.

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