N.Y. judge starts habeas corpus procedure for two lab chimps

“Show cause” order issued on behalf of Hercules & Leo

NEW YORK, N.Y.–– Manhattan Supreme Court Justice Barbara Jaffe late on April 20, 2015 ordered Stony Brook University to show cause why two chimpanzees, Hercules and Leo, should not be released under a writ of habeas corpus from confinement for biomedical research.

“Under the law of New York State,” explained Nonhuman Rights Project founder Steven Wise, “only a ‘legal person’ may have an order to show cause and writ of habeas corpus issued in his or her behalf. The Court has therefore implicitly determined that Hercules and Leo are ‘persons.’

“A common law writ of habeas corpus involves a two-step process,” Wise continued. “First, a Justice issues the order to show cause and a writ of habeas corpus.” The Nonhuman Rights Project will then serve the order on Stony Brook University.

“The writ requires Stony Brook University, represented by the Attorney General of New York, to appear in court and provide a legally sufficient reason for detaining Hercules and Leo,” Wise said. “The Court has scheduled that hearing for May 6, 2015, though it may be moved to a later day in May.”

What a writ of habeas corpus is

A writ of habeas corpus, somewhat differently defined by the laws of various nations, is an order that a prisoner should be released. Sometimes the writ is conditional, as in a case where a prisoner is allowed to post bail. Sometimes the writ amounts to an absolute discharge, as when the prisoner is found to have been wrongfully convicted, or imprisoned without charges being brought within a reasonable length of time.

Holding that Hercules and Leo have been unjustifiably held against their wishes, the Nonhuman Rights Project has asked that they be released into the care of the Save the Chimps sanctuary in Fort Pierce, Florida.

Justice Barbara Jaffe

Justice Jaffe & her court

Justice Jaffe, who issued the order to Stony Brook University, is an acting justice for the New York County Supreme Court in the 1st Judicial District of New York, appointed in 2010. Jaffe also serves on the New York City Civil Court, to which she was re-elected for a 10-year term in 2011, after running unopposed.

Jaffe’s position on the New York County Supreme Court means that she serves at the highest level of trial court in New York, but her authority is not to be confused with the that of a state supreme court justice as defined in most other states. The highest state court in New York is the Court of Appeals.

Appellate panel earlier rejected arguments

Ruling on essentially the same arguments, a five-judge New York Appellate Division panel on December 4, 2014 held unanimously that a 26-year-old chimpanzee named Tommy was ineligible for a writ of habeas corpus.

Tommy (Facebook photo)

A similar case brought on behalf of a chimp named Kiko was later rejected on the same grounds.

Wrote Presiding Justice Karen Peters, “Needless to say, unlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights—such as the fundamental right to liberty protected by the writ of habeas corpus—that have been afforded to human beings.”

Steven Wise, who brought the case, “requests that this court enlarge the common-law definition of ‘person’ in order to afford legal rights to an animal,” Peters continued. “We decline to do so, and conclude that a chimpanzee is not a ‘person’ entitled to the rights and protections afforded by the writ of habeas corpus.”

Added Peters, “Not surprisingly, animals have never been considered persons for the purposes of habeas corpus relief, nor have they been explicitly considered as persons or entities capable of asserting rights for the purpose of state or federal law.”

Peters’ opinion was endorsed by New York appellate justices John Lahtinen, Elizabeth Garry, Robert Rose, and Michael Lynch.

Nonhuman Rights Project logo

Appeals pending

A retired performing chimp, Tommy “was placed with Patrick Lavery about 10 years ago,” wrote George M. Walsh of Associated Press. “Lavery said Tommy lives in a seven-room enclosure in Gloversville (New York) with lots of toys and other enrichment. A trial level court had previously denied the Nonhuman Rights Project’s effort to have Tommy released. The Nonhuman Rights Project said it will appeal to the state’s top court, citing other New York appeals court rulings it says are at odds with Thursday’s decision.”

Affirmed Wise on April 20, 2015, “the Nonhuman Rights Project has filed Motions for Leave to Appeal [of the Tommy and Kiko verdicts] to New York’s highest court, the Court of Appeals. Decisions in both cases are pending.”

Wise contends that the lower court rulings in the Tommy and Kiko cases contradict “a 1972 decision in the case of Fordham University law professor Robert Byrn, an anti-abortion activist who sued the New York City Health and Hospitals Corporation on behalf of all fetuses scheduled for abortion,” summarized Robert Gavin of the Albany Times. “Byrn argued that unborn children were human beings. The court’s decision, which preceded Roe v. Wade and upheld abortion rights, stated that ‘upon according legal personality to a thing the law affords it the rights and privileges of a legal person.’”

Citing the 1972 ruling as a precedent, Wise has pursued a similar case on behalf of an elephant, as well as on behalf of the chimps Hercules, Leo, Tommy, and Kiko.

Sandra the orangutan won a writ of habeas corpus.

Argentine case

The first hint of success in seeking a writ of habeas corpus on behalf of a nonhuman animal came in “a decidedly vague and cursory decision of the Federal Criminal Court of Appeals in Buenos Aires issued on December 18, 2014,” reported Law.com contributor James Chiang, in which the three-judge bench “reversed a trial court’s decision not to accord an orangutan status to file for habeas corpus inquiring into its retention in a cage.”

The majority ruled in the Argentine case that “Based on a dynamic rather than a static interpretation of the law, it is necessary to recognize the animal as a subject of rights, because non-human beings (animals) are entitled to rights, and therefore their protection is required by the corresponding jurisprudence.”

Premature celebration

As in the April 20, 2015 ruling by New York Judge Jaffe, further evidentiary proceedings were ordered.
“The ruling was heralded as a victory, a triumph. The dawn of a new era in animal rights law,” wrote Buenos Aires-based Canadian freelance journalist Jeff Campagna. “But upon closer analysis of the court’s decision, the deluge of triumphant headlines seems to have been premature.

“The Federal Court’s habeas corpus ruling left the door open for the defendants to file a special third appeal, based on ‘erroneous application of substantive law,’ with the Provincial Judiciary of the City of Buenos Aires,” Campagna explained. “However, the Provincial court lacks the power to issue writs of habeas corpus, which means the case will be downgraded to a regular animal mistreatment dispute.

“For Sandra,” Campagna concluded, “it appears to have been a hollow victory. Sandra still languishes” at the Buenos Aires Zoo. Born in 1986 at the Rostock Zoo in Germany, Sandra was transferred to the Buenos Aires Zoo in 1994.

Unique aspect of Argentine law

The Argentinian verdict was a precedent worldwide. The arguments supporting it, however, appeared to have limited leverage within Argentine law, and less the legal structures of Anglo-Saxon common law, which forms the framework of law in the U.S. and in most of the other nations that were once part of the British Empire. Neither did the Argentine court’s reasoning appear to be easily applicable Napoleonic law, the foundation of law in much of Europe and the Middle East.

While Argentine law incorporates principles borrowed from Napoleonic law and several other traditions, it uniquely “was the first civil law that consciously adopted as its cornerstone the distinction between rights from obligations and real property rights,” summarizes Wikipedia.

The verdict in Sandra’s case appeared to reflect that cornerstone distinction.

The habeas corpus ruling was won on appeal of two losses in lower courts by the Buenos Aires-based Asociación de Funcionarios y Abogados por los Derechos de los Animales, which termed Sandra’s incarceration at the Buenos Aires Zoo “the unjustified confinement of an animal with proven cognitive ability.”

Matthew Hiasl Pan

Matthew Hiasl Pan

Association Against Animal Factories founder Martin Balluch, of Vienna, Austria, brought the first “personhood” case in modern times in 2007, seeking to have a chimpanzee named Matthew Hiasl Pan declared legally a person. Animals had been considered legal persons by various medieval courts, mostly to their disadvantage, in being convicted of crimes against humans.

Matthew Hiasl Pan and a companion, Rosi, lived at a sanctuary that had gone bankrupt. Both chimps were captured in Sierra Leone in 1982 and smuggled into Austria for laboratory use, but were rescued and sent to the sanctuary by Austrian customs agents. Balluch sought personhood status for Matthew Hiasl Pan as a test case, hoping to prevent him from being sold abroad by creditors, beyond Austrian protection. The Austrian Supreme Court in January 2008 rejected Balluch’s last appeal.