"Change laws in legislature" say courts in chimp & elephant rulings

(Beth Clifton collage)

Attempts to stretch precedents are unanimously rejected in both New York & California appellate courts

NEW YORK CITY, N.Y.; LOS ANGELES, California––The Appellate Division Court of Manhattan on June 8, 2017 ruled 5-0 against the latest attempt of many by Nonhuman Rights Project attorney Steven Wise to have chimpanzees recognized as legal persons, with constitutionally protected human rights including the right to liberty.

The ruling followed by two weeks a 7-0 decision by the California Supreme Court that overturned a 2012 Los Angeles Superior Court injunction against the Los Angeles Zoo, issued on behalf of the resident elephants.

Civil lawsuit alleged criminality

Explained Edwin Folvin of The Beverly Press, “The lawsuit by attorney David B. Casselman, filed on behalf of real estate agent Aaron Leider, was a civil lawsuit filed by a taxpayer against a government agency. The justices ruled that the lawsuit alleged criminal behavior – cruelty to animals – and not the wasting of taxpayer funds,” the subject of the applicable civil law, “and thus should have been a criminal lawsuit.”

Taken together, the New York and Los Angeles decisions signal rejection by two of the most influential courts in the U.S. of attempts by prominent animal rights lawyers to change the legal status of animals by seeking to have novel legal theories recognized as precedents, as opposed to changing the underlying legislation through the political process.

Elephants were front-and-center in this mid-20th century Ringling poster.

Pursuing novel legal theories on behalf of animals tends to appeal to frustrated animal advocacy donors, but has rarely succeeded as a tactic, and has at times had a very high cost.

Ringling case failure

The New York and Los Angeles verdicts, for example, follow the 2009 failure of an attempt by several leading animal advocacy organizations to oblige the Ringling Bros. Barnum & Bailey Circus to discontinue presenting traveling elephant shows, as an alleged violation of the Endangered Species Act.

After U.S. District Judge Emmet G. Sullivan dismissed the original case, following nearly 10 years of litigation, Ringling countersued, winning settlements of $9.3 million from the American SPCA in 2012 and $15.75 million from the Humane Society of the U.S. in 2014.

Ringling in May 2017 finally did stop exhibiting elephants, but retired the entire former circus elephant herd to use in cancer research.

Hercules & Leo.
(Nonhuman Primate Rights Project photo)

(See Ringling Bros. circus folds, upstaging last SeaWorld San Diego “Shamu” show, Ringling to move all elephants from the circus ring into cancer research by May 2016, Ringling may be illegally sending elephant blood to researchers, charges SAEN.)

Wise likely to try again

Wise, the Appellate Division of Manhattan defeat notwithstanding, is expected to continue pursuing similar arguments, either in further appeals of the same case or in parallel cases filed in other jurisdictions.

Nonhuman Rights Project logo

“The Nonhuman Rights Project and its attorneys are currently reviewing the decision and will issue a more detailed press release in the coming days,” said publicist Jennifer Fermino of Fenton Communications in a statement issued on Wise’s behalf.

The Appellate Division of Manhattan came to rule on the question of “personhood” for chimpanzees after Manhattan Supreme Court Justice Barbara Jaffe in April 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.

In July 2015, however, Jaffe rejected the application for a writ of habeas corpus. Wise then appealed her verdict.

Project Chimps overview. (Beth Clifton collage)

Project Chimps

Meanwhile, Hercules and Leo were in December 2015 relocated to the New Iberia Research Center in Louisiana. In May 2016 the New Iberia Research Center announced that it would eventually retire the entire NIRC chimp colony, about 220 chimps in all, to a new sanctuary under construction by Project Chimps in Blue Ridge, Georgia.

The first chimps arrived at the sanctuary in September 2016.

That chimpanzees share many physical and behavioral characteristics with humans “does not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions,” wrote Justice Troy Webber in the Appellate Division of Manhattan decision, concluding that “While petitioner’s avowed mission is certainly laudable, the according of any fundamental legal rights to animals, including entitlement to habeas relief, is an issue better suited to the legislative process.”

“Humanity Dick” Martin in 1824 won the first British cruelty conviction after presenting an abused donkey as evidence––trumpeted by the media of the day as having called the donkey as an expert witness.

Medieval history rejected as precedent

Harvard Law School Professor Laurence Tribe argued for Wise in a friend-of-the-court brief that there is a “long history, mainly from the medieval and early modern periods, of animals being tried for offenses such as attacking human beings and eating crops,” which together could be taken as precedents for recognizing that animals have legal obligations from which legal rights could be inferred.

“Webber, however, said none of the cited cases were recent or from New York, and that chimpanzees’ inability to defend themselves or take sufficient responsibility explains why those who kill or seriously injure humans are not prosecuted,” summarized Reuters legal writer Jonathan Stempel.

The late Robert Culp was initially among the plaintiffs in the case against the Los Angeles Zoo, but died two years before the injunction against the zoo was issued.

Los Angeles Zoo case

The 2012 Los Angeles County Superior Court injunction required the Los Angeles Zoo to exercise elephants on Rototilled soil, rather than hard-packed dirt, gravel, or pavement, and prohibited the use of electric prods to move or discipline elephants.

“The injunction also banned the use of electric shock and a barbed stick known as a ‘bull hook’ — disciplinary tools the zoo said it wasn’t using and will not use now,” wrote Los Angeles Times legal affairs writer Maura Dolan.

John Lewis, director of the L.A. Zoo, told Dolan that the zoo would continue to observe the injunction in looking after the three Asian elephants who still live there: Billy, who at 32 is among the youngest bull elephants in the U.S., and Tina and Jewel, both of whom are more than 50 years of age.

David B. Casselman
(The Whale Sanctuary Project)

Who is David M. Casselman?

Casselman, added Dolan, whom she described as “a Tarzana lawyer who worked on the case for more than five years without charge, “ pledged to “return to trial court to see if there is another way to obtain a similar injunction or ask the Legislature to overturn the ruling.”

Casselman on his web site describes himself as “pro bono counsel to the Whale Rescue Team in Los Angeles California,” also “founder and director of the Cambodia Wildlife Sanctuary, which is comprised of one million acres of unmined jungle land in northwestern Cambodia.”

Tom Hayden, speaking at the Lyndon B. Johnson Library & Museum in April 2016.
(Wikipedia photo)

In addition, Casselman identifies himself as “one of the co-authors of the ‘Hayden Law’ in California,” which since 1998 has required public shelters to release impounded animals to any nonprofit organizations willing to take them. Largely unenforced, as an “unfunded mandate,” the Hayden Act neglected to require the nonprofit organizations receiving animals from public shelters to meet any animal care inspection or accountability standards.

(See Tom Hayden, author of California’s Hayden Act, dies at 76.)

Political process continues

While Casselman called the California Supreme Court verdict “heartbreaking,” it “does not affect an effort by Los Angeles City Councilman Paul Koretz, 5th District, to have the zoo’s male elephant, Billy, moved to a sanctuary,” explained Edward Folvin of The Beverly Press.

Merritt & Beth Clifton

“Koretz’s motion to have Billy removed from the zoo will next be heard in the Council’s Personnel and Animal Welfare Committee at a date to be determined,” wrote Folvin, citing information from Koretz’s communications director, Alison Simard.