In quite an unusual case, the New York Court of Appeals recently avoided deciding whether chimpanzees can be protected by a writ of habeas corpus, denying a motion for leave to appeal a decision affirming two judgments of a lower court declining to sign orders to show cause to grant two chimpanzees habeas relief. Significantly, although the ruling was unanimous, Judge Eugene Fahey wrote a separate and notable concurrence that both generally acknowledged the “inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas” and specifically recognized the need for the Court of Appeals to address the “profound and far-reaching” question of “whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus.”
At issue in the case, Matter of Nonhuman Rights Project, Inc. v. Lavery, Case No. 2018-268, were two captive chimpanzees, Tommy and Kiko, who were confined in small cages. Petitioner, an animal rights group, sought to have the chimpanzees transferred to a primate sanctuary via two writs of habeas corpus. On June 8, 2017, the Appellate Division First Department affirmed two judgments entered by the New York Supreme Court denying the requested relief. The First Department held, as an initial matter, that the petitions were barred by CPLR section 7003(b), which permits the denial of repetitive habeas petitions (Petitioner had previously filed nearly identical petitions in other counties that were denied). Moreover, the First Department reasoned that “[n]o precedent exists, under New York law, or English common law, for a finding that a chimpanzee could be considered a ‘person’ and entitled to habeas relief. In fact, habeas relief has never been found applicable to any animal.”
On May 8, 2018, the Court of Appeals denied a motion for leave to appeal the First Department’s decision without an opinion. In his concurrence, although Judge Fahey agreed that the petitions were barred by section 7003(b), he wrote separately to question the First Department’s conclusion that, because chimpanzees are not “persons,” they necessarily cannot qualify for habeas relief. According to Judge Fahey, the First Department erroneously hinged its analysis on the question of whether a chimpanzee is literally a person. Of course, it is not. However, from the fact that persons “possess intrinsic dignity and value,” the Judge reasoned that it does not necessarily follow that “we should  lower the status of other highly intelligent species.”
Instead, Judge Fahey suggested that the relevant question may be whether a chimpanzee “has the right to liberty protected by habeas corpus,” which turns “on our assessment of the intrinsic nature of chimpanzees as a species.” In the record before the Court of Appeals there was unrebutted evidence of chimpanzees’ advanced cognitive abilities, including affidavits from well-respected primatologists like Jane Goodall. In light of this evidence, Judge Fahey remarked that:
“To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.”
When considered from this perspective, the question of whether chimpanzees and other nonhuman animals have a right to liberty protected by the writ of habeas corpus becomes quite complex. Indeed, Judge Fahey noted that he continues to struggle with this issue as, “[w]hile it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”
Ultimately, as leave to appeal was denied, whether the Court of Appeals would be inclined to consider these arguments in future habeas cases is an open question. Nevertheless, precedent from New York’s lower courts remains squarely against granting habeas relief to nonhuman animals.