Monkey business: Should a monkey be able to sue its owner?
JUST before 4 pm on October 10, Steven Wise pulled his rental car in front of a multiacre compound on state Highway 30 near the Adirondack hamlet of Gloversville, New York, and considered his next move.
For the past 15 minutes, Wise had been slowly driving the perimeter of the property, trying to get a better read on the place. An assortment of transport trailers — for horses and livestock, cars and boats — cluttered a front lot beside a single-story business office with the sign “Circle L Trailer Sales” set above the door. At the rear of the grounds was a barn-size, aluminium-sided shed, all its doors closed, the few small windows covered in plastic.
A number of times Wise pulled off the road and called his office to check whether he had the right place. It wasn’t until he finally spotted a distant filigree of deer antlers that he knew for certain. The owner of Circle L Trailer, Wise had read, runs a side enterprise known as Santa’s Hitching Post, which rents out a herd of reindeer for holiday events and TV spots.
After spotting a man tightening bolts on one of the trailer hitches, Wise paused to explain his strategy to me and the documentary filmmaker Chris Hegedus, who had a video camera. “I’m just going to say that I heard their reindeer were on TV,” Wise said. “I happened to be driving by and thought I might be able to see them in person.”
The repairman told Wise that the owner wasn’t on the premises that day. Wise mustered as many reindeer questions as he could, then got to his real agenda.
“So,” he asked. “Do you keep any other animals around here?”
“Yeah,” the man answered, nodding toward the aluminium-sided shed. “In there. Name’s Tommy.”
Inside the shed, the repairman inched open a small door. A rancid milk-musk odour wafted forth and with it the sight of an adult chimpanzee, crouched inside a small steel-mesh cell. The only visible light emanated from a small portable TV on a stand outside his bars.
Tommy’s original owner, we learned, was named Dave Sabo, the one-time proprietor of a troupe of performing circus chimps. The repairman said that Sabo raised Tommy, who appears to be in his 20s, from infancy. Sabo, who had been living for a number of years in a trailer on the grounds of Circle L Trailer, recently died.
On the way back out to the car, Wise paused.
“I’m not going to be able to get that image out of my mind,” he said, his voice quavering. “How would you describe that cage? He’s in a dungeon, right? That’s a dungeon.”
Seven weeks later, on December 2, Wise, a 63-year-old legal scholar in the field of animal law, strode with his fellow lawyers, Natalie Prosin, the executive director of the Nonhuman Rights Project, or NhRP, and Elizabeth Stein, a New York-based animal-law expert, into the clerk’s office of the Fulton County Courthouse in Johnstown, 10 miles from Circle L Trailer Sales, wielding multiple copies of a legal document the likes of which had never been seen in any of the world’s courts.
Under the partial heading “The Nonhuman Rights Project Inc. on behalf of Tommy,” the legal memo and petition included an account of the “petitioner’s” solitary confinement “in a small, dank, cement cage in a cavernous dark shed”; and a series of nine affidavits gathered from leading primatologists around the world, each one detailing the cognitive capabilities of a being like Tommy.
Along with chimps, the NhRP plans to file similar lawsuits on behalf of other members of the great ape family (bonobos, orangutans and gorillas) as well as dolphins, orcas, belugas, elephants and African gray parrots — all beings with higher-order cognitive abilities.
“Like humans,” the legal memo reads, “chimpanzees have a concept of their personal past and future ... they suffer the pain of not being able to fulfill their needs or move around as they wish; [and] they suffer the pain of anticipating never-ending confinement.” What Tommy could never have anticipated, of course, huddled just up the road that morning in his cell, was that he was about to make legal history: the first nonhuman primate to ever sue a human captor in an attempt to gain his own freedom.
It has been only in the last 30 years or so that a distinct field of animal law — that is laws and legal theory expressly for and about non-humans — has emerged. When Wise taught his first animal-law class in 1990 at Vermont Law School, he knew of only two others of its kind in the country. Today there are well over a hundred. Yet while animal-welfare laws and endangered-species statutes now abound, the primary thrust of such legislation remains the regulation of our various uses and abuses of animals. The fundamental legal status of non-humans, however, as property, with no rights of their own, has remained unchanged.
Wise has devoted himself to subverting that hierarchy. Not in order to cast cognitively advanced beings like Tommy in a human light, but rather to ask a judge to recognise them as individuals in and of themselves: Beings entitled to something that, without us, no wild animal would ever require — the fundamental right, at least, not to be wrongfully imprisoned.
In 1991, Wise filed an early animal rights lawsuit that both underscored the difficulty of the challenge he would be facing and helped him hone his legal strategy. The case, filed in the United States District Court of Massachusetts against the New England Aquarium, was on behalf of Kama, a 6-year-old dolphin, and several animal rights groups that objected to the aquarium’s transfer of Kama to the navy for training at the Naval Ocean Systems Center in Hawaii, a violation, the suit claimed, of the Marine Mammal Protection Act.
The judge immediately dismissed Kama’s part of the suit due to insufficient “standing”: the legal requirement that a plaintiff personally speak to the injury that has been done to him by the defendant and then show that such harm can be properly redressed by the court – a requirement that Kama, of course, could never have met.
“The lawyer for the aquarium was so outraged,” Wise said. “He kept saying, ‘Judge, our own dolphin is suing us!’ And I understand that outrage. He felt: ‘We own this. This is completely ours, and what is ours is now claiming we can’t do something to it?’ But what these cases made me realise is that the issue wasn’t really about standing at all. What lawyers and judges had been calling an ‘animal-standing problem’ was really a ‘not-being-a-legal-person problem.’ We could show the animals had been injured, that the defendants were responsible and that the judge could remedy it. But because animals are not legal persons, they don’t even have the capacity to sue in the first place. They’re totally invisible. I knew if I was going to begin breaking down the wall that divides human and nonhumans, I first had to find a way around this issue of personhood.”
A few years later, while continuing to lecture in animal jurisprudence to law students, Wise revisited the famous case of Somerset v. Stewart. In 1772, the chief justice of the English Court of King’s Bench, Lord Mansfield, issued a writ of habeas corpus - a court order requiring that a prisoner be brought before a judge by his captor in order to rule on the legality of that prisoner’s detainment – on behalf of a slave named James Somerset, a being as invisible then to the law as any nonhuman. Mansfield ultimately decided to free Somerset from his Scottish-American owner, Charles Stewart — a landmark decision that would drive one of the first wedges into the wall then dividing black and white human beings from one another.
The Somerset case soon had Wise exploring other habeas corpus cases. He noted that many of them were filed on behalf of those unable to personally appear in court: prisoners, for example, or children.
As Wise started to formulate it further, he saw habeas corpus as a form of redress for the denial of a “legal person’s” right to bodily liberty, not necessarily a “human being’s.” Over lunch in Manhattan one afternoon a few weeks after finding Tommy, Wise outlined a broad spectrum of cases in which nonhumans have been held to be legal persons, like ships, corporations and states. He invoked cases in India in which the holy book of the Sikhs was deemed a legal person.
“A legal person is not synonymous with a human being,” he told me. “A legal person is an entity that the legal system considers important enough so that it is visible and [has] interests” and also “certain kinds of rights.”
The other advantage of habeas corpus cases, Wise said he realised, is they allow him to circumvent federal courts, where judges tend to rule in accordance with what they perceive to be the original intentions of pre-existing statutes and laws. State courts, by contrast, where almost all habeas corpus cases are heard, are the home of common law – what Wise often characterises as a breeding ground of ever-evolving laws where for the past 800 years judges have been making decisions based more on the available evidence and on broader principles like liberty and what is morally right.
At just past 2pm on December 2, NhRP’s legal team of Wise, Prosin and Stein sat at the plaintiff’s table in the main courtroom of the Montgomery County courthouse in Fonda, New York nervously awaiting the entrance of Justice Joseph M Sise.
Wise had told me what he could expect from a decision made in a lower court like this one. “At this level,” he said, “it’s not going to be an emotional decision, but a very practical, serious one. The judge is going to want to rule in a way in which he feels reasonably supported by the existing laws. He doesn’t want to look like an idiot. But if he’s willing to hear the case, or even write a decision on it, as long as his rejection goes on the record, we can go to the Court of Appeals. That’s where you can argue with more emotion and where most common law gets made anyway.”
A voice called, “All rise.” Through an opening in the courtroom’s oak paneling, Sise, a tall, lean man in his early 50s, emerged and strode to his seat at the bench. Wise listened, rapt as Sise spoke the words he had been waiting his entire career to hear in court: “This is in the matter of ... an application ... seeking a writ of habeas corpus for a nonhuman.”
The hearing took no more than 20 minutes. The justice interrupted often at the start, pre-empting Wise’s attempts at building an argument, knocking him back on his heels with repeated questions about why Article 70 of the Civil Practice Law and Rules — New York state’s habeas corpus provision — was the only form of redress in this instance.
“Isn’t there a different way,” Sise asked at one point, “for you to petition the court for ... relief other than attempting to have the Supreme Court ... enlarge the definition of ‘human being’ under Article 70 to include an animal?”
“We are most definitely not asking the court to redefine the term ‘human being,’” Wise boomed. “We brought a writ of habeas corpus because [it] is aimed at the denial of a legal person’s, not necessarily a human being’s, but a legal person’s right to bodily liberty.”
Wise next began to make his case for why all chimps in New York should be declared legal persons, arguing that they are fully autonomous beings. “Says who?” Sise asked. “And ... I’m asking the question because that’s beyond your ken and beyond my ken. It’s beyond the ken of the normal fact-finder. You’re stating something that only expert testimony could supply.”
Wise quickly cited the affidavits from the world’s leading primatologists. Sise fell silent, his head nodding slightly.
“So what is it that you’re asking the court to do in terms of Article 70, make an exception for chimpanzees only?” Sise asked. “You understand the question, right? The legal conundrum the court is in based upon your argument?”
“We are, in a specific, legal way ... simply asking that you issue the writ of habeas corpus on behalf of Tommy,” Wise began calmly. “We are saying the reason that this court should do that is Tommy, as these experts pointed out, is autonomous. ... Being a member of the species Homo sapiens is indeed a sufficient condition for personhood, but there are other sufficient conditions for personhood, as well. ... Autonomy is an extraordinarily important attribute, and we argue ... that a being who is autonomous, who can choose, who is self-aware, these, your honor, are essentially us.”
“All right,” Sise said. “What else? Anything else?”
Wise appeared spent. “No, your honor.”
The justice sat back in his chair. “Your impassioned representations to the court are quite impressive,” he said. “The court will not entertain the application, will not recognise a chimpanzee as a human or as a person ... who can seek a writ of habeas corpus under Article 70. I will be available as the judge for any other lawsuit to right any wrongs that are done to this chimpanzee, because I understand what you’re saying. You make a very strong argument. However, I do not agree with the argument only insofar as Article 70 applies to chimpanzees. Good luck with your venture. I’m sorry I can’t sign the order, but I hope you continue. As an animal lover, I appreciate your work.”
The NhRP ended up losing their other two New York cases as well - one on behalf of a chimp in Niagara Falls named Kiko, and the other in the name of Leo and Hercules, two chimps being kept at Stony Brook University for studies on human locomotion – with the judges arguing that the petitioners had other remedies they could seek through existing animal-protection laws. But before Justice Ralph A. Boniello III, of the state Supreme Court for the County of Niagara, rendered his decision, Wise was given full leave to air for the record his petition on behalf of Kiko. The justice called the argument “excellent” but concluded that he was “not prepared to make this leap of faith.”
On balance, Wise and his colleagues emerged from their first round of suits ecstatic. They had all they needed to take the cases to the appellate level to keep making their argument.
In February, the NhRP lawyers were in New York City for a weekendlong meeting to refine their pending appeals for later this year and to decide on the next roster of plaintiffs. Over dinner one night, I reminded Wise that he, the crusader against speciesism and ordained hierarchies, has been accused of erecting a speciesist hierarchy of his own by singling out only certain sufficiently sophisticated animals to represent in court. I asked him, for example, if he would also consider filing a suit on behalf of a tortoise or a rat.
“I don’t know the answer to the question,” he responded. “The reason I do know the answer for the animals we are currently choosing to represent is we’ve spent years trying to understand what their cognitive capabilities are. But we feel very comfortable in saying that for any nonhuman animal who is autonomous, whatever species they may be, then we will go into court and make the argument that they have a sufficient condition for rights.”
Much like other civil rights movements, the NhRP’s efforts are designed to be a systematic assault; a continued and repeated airing of the scientific evidence now at hand so that other lawyers and eventually judges and society as a whole can move past what Wise considers the increasingly arbitrary distinction of species as the determinant of who should hold a right.
Wise said he doesn’t expect to win in the first round of suits, and neither does he in the fifth or the 20th. “For me this has been a 25-year plan. All my books and my courses were designed to help me think through this problem. Now I want to spend the rest of my life litigating. If we lose, we keep doing it again and again, until we find a judge who doesn’t feel that the way is closed off. Then our job is to produce the facts that will allow that judge to make that leap of faith. And when it happens, it will be huge. I wouldn’t be spending my life on this otherwise.”
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