United States: The Nonhuman Rights Project Takes Another Stab At Tommy, The Chimpanzee

Last Updated: December 7 2015
Article by Nancy E. Halpern, DVM, Esq.

Perhaps unsurprisingly, the Nonhuman Rights Project (NhRP) filed another petition for a writ of habeas corpus (available of NhRP's website) to:

a) require Respondents to justify their detention of a chimpanzee named Tommy,

b) order Tommy's immediate discharge, and

c) order Tommy's transfer to an appropriate primate sanctuary, which the NhRP suggests is Save the Chimps.

This is not the first attempt by NhPR to "free" a chimpanzee from "illegal captivity."

As disclosed in the Verified Petition filed in the County of New York on December 2, 2015, the NhRP filed a number of similar cases in courts throughout New York, including a previous petition to release Tommy, which, when denied, they unsuccessfully appealed.

One previous application for a writ of habeas corpus and order to show cause was filed by the NhRP on behalf of Tommy in the Supreme Court, Fulton County on December 2, 2013 (Index No. 02051).  An ex parte  hearing on the record was held . . . before the Honorable Joseph M. Sise, Justice of the Supreme Court, at which time the application was denied . . .

On December 4, 2014, the Third Department affirmed the lower court's dismissal of the NhRP's petition for a writ of habeas corpus . . .

Verified Petition at ¶¶ 25, 27.

According to the NhRP, they are able to repeatedly re-file similar petitions because allegedly "neither issue preclusion nor claim preclusion apply to the common law writ of habeas corpus."  Verified Petition at ¶ 32.

Likely anticipating an objection to their decision to file this petition in the County of New York (supposedly looking for a court more inclined to grant the petition), instead of Fulton County (the court where the first petition was filed and where Tommy's owners reside) the petitioners allege:

This Court should issue the writ of habeas corpus and order to show cause . . . and make it returnable to New York County [because] . . . a writ must be returnable to the county in which it is issues except: . . . b) where the petition was made to a court outside of the county of detention, the court may make the writ returnable to such county.

Verified Petition at ¶ 12.  Petitioner made no plausible allegation for the retention of the petition in the County of New York, instead of Fulton County, over 200 miles and more than 3 hours away.

Interestingly, NhRP continues to rely on the inter vivos trust they manufactured based on New York Estates, Powers and Trusts law, section 7-8.1, which notably has no inter vivos provisions.

To support their position that they have new evidence to support their current petition, Petitioners, rely on "experts" including Jane Goodall, PhD, alleging that "chimpanzees can shoulder duties and responsibilities in their own societies and in human/chimpanzee societies," (Verified Petition at ¶ 3) to overcome the courts' prior denial of the writ because they concluded that chimps cannot shoulder such responsibilities, required for anyone receiving the benefit of such a writ.

NhRP continues to have significant challenges to their attempts to change policy by using, and arguably abusing the courts.  As they alleged, "[t]he New York Court of Appeals has stated that the determination of legal personhood is a policy question and not a biological one."  Verified Petition at ¶ 3 (citing Byrn v. New York City Health & Hosps. Corp., 31 N.Y.2d 194 (1972)).

Courts are not the appropriate venue to address policy questions.

More to come on this continuing saga.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nancy E. Halpern, DVM, Esq.
 
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