Letter #2 from the Front Lines of the Struggle for Nonhuman Rights: January 2018 to September 2018
By NhRP President Steven M. Wise
In January of 2018, I wrote “Letter #1 from the Front Lines of the Struggle for Nonhuman Rights: the First 50 Months.” In it, I noted that the tendency of the press to report only that the NhRP won or lost a particular case fails to capture the enormity, complexity, and range of the struggle for the rights of nonhuman animals we have begun. I explained that one of our initial litigation goals is to encourage judges to begin to think about the injustice of the de facto legal thinghood, the abject rightlessness, of all nonhuman animals in the United States, for we believe that to think about this injustice will inevitably lead fair-minded judges to condemn it. The real, more complex story is that we persist, undeterred, secure in the knowledge that our approach to securing recognition and protection of the fundamental rights of nonhuman animals is legally, morally, factually, historically, and inevitably correct.
I set out four roads down which courts might travel when confronted with our nonhuman clients’ arguments that liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making, constitute the fundamental values and principles of justice that entitled them, at minimum, to the right to bodily liberty protected by habeas corpus.
The first road leads to their denial that liberty, autonomy, equality, and fairness, along with rational and nonarbitrary decision-making, are the fundamental values and principles that constitute justice. This would allow the NhRP to file new lawsuits that invoke the correct values and principles. To date no American court has so claimed.
Second, courts may apply their fundamental values and principles of justice to the claims the NhRP brings on behalf of our nonhuman animal clients and recognize the justice of recognizing their personhood and rights. As of January of 2018, no American court had fully taken this road, either, though one New York trial court had come close, and it has occurred in Argentina and India.
Third, courts can choose to undermine their fundamental values and principles of justice by insisting ad hoc that they apply to all, but only, human beings. This is the most dangerous road, for it will inevitably and severely undermine every rationale for recognizing fundamental human rights.
Fourth, some courts have shied away from choosing between the second and third roads. Instead they dismiss our cases on procedural grounds while refusing to assess the merits of our claims or even hear our arguments.
At the time I wrote Letter #1, we felt confident in our progress. While all four of New York’s intermediate appellate departments had ruled against us, each on a different ground, and New York’s high court, the Court of Appeals, had refused to take further review the two times we requested it in 2015, we believed that all four intermediate appellate courts had not just been wrong, but flagrantly so, and that their decisions were accordingly unstable and would not stand the test of time.
The Second Department had planted its feet firmly on the fourth road when it erroneously denied the NhRP our right to appeal on behalf of our chimpanzee clients Hercules and Leo. The Fourth Department joined the Second when it misread our habeas corpus petition and erroneously concluded that the NhRP had failed to allege that the detention of our chimpanzee client, Kiko, was illegal, and that we were not seeking his immediate release from detention, but rather, his immediate transfer to a sanctuary.
The Third Department took the third road in its rush to achieve the dubious honor of becoming the first court in world history to tie eligibility for every legal right to a capacity to bear legal duties, which millions of New Yorkers (infants, children, and adult mentally incompetent individuals) lack, just to deprive our chimpanzee client, Tommy, of his right not to be imprisoned alone in a cage on a used trailer lot. This ruling severely undermined every rational and nonarbitrary basis for these millions to possess any legal rights either. Finally, in a decision so outrageously flawed that we were moved to annotate the court’s numerous errors sentence by sentence on our website, the First Department joined the Third by briefly pronouncing ex cathedra that Tommy and Kiko could never have any rights because rights, for some unexplained reason, were reserved for humans.
The NhRP decided that rather than appeal the action of the Second Department, we would file a second case on behalf of Hercules and Leo at a future date in Manhattan, which we did. The appeals the NhRP took on behalf of Tommy and Kiko against the decisions of the Third and First Departments were turned away by the Court of Appeals without comment and without reaching their merits, as occurs in 95% of the civil cases that come before that court. And this is where matters stood in January of 2018, except for one thing.
At the time, the NhRP had pending before the Court of Appeals a request for further review of the First Department’s denial of personhood and rights to Tommy and Kiko — solely because they were not human — a request we expected the high court not to allow. On May 8, 2018, that court fulfilled our expectation, again without comment and without reaching their merits. But then something extraordinary occurred.
Writing separately, Associate Judge Eugene Fahey, who had voted in 2015 to deny further view of the decisions of the Third and Fourth Departments in Tommy’s and Kiko’s appeals, became the first American high court judge to give his opinion on the merits of the NhRP’s arguments and the adverse decisions of the eleven New York courts who had ruled against us. His opinion, like ours, was that all of them — all of them — had been wrong.
Judge Fahey specifically rejected both the First and Third Departments’ refusal to recognize that chimpanzees cannot be persons because they lack “the capacity or ability … to bear legal duties, or to be held legally accountable for their actions” He noted that
Petitioner and amici law professors Laurence H. Tribe, Justin Marceau, and Samuel Wiseman question this assumption. Even if it is correct, however, that nonhuman animals cannot bear duties, the same is true of human infants or comatose human adults, yet no one would suppose that it is improper to seek a writ of habeas corpus on behalf of one’s infant child (citation omitted) or a parent suffering from dementia (citation omitted). In short, being a ‘moral agent’ who can freely choose to act as morality requires is not a necessary condition of being a ‘moral patient’ who can be wronged and may have the right to redress wrongs (see generally Tom Regan, The Case for Animal Rights 151–156 [2d ed 2004] ).
He then criticized the First Department’s “conclusion that a chimpanzee cannot be considered a ‘person’ and is not entitled to habeas relief is in fact based on nothing more than the premise that a chimpanzee is not a member of the human species.
“I agree,” Judge Fahey continued, “with the principle that all human beings possess intrinsic dignity and value, and have, in the United States (and territory completely controlled thereby), the constitutional privilege of habeas corpus, regardless of whether they are United States citizens (citation omitted) but, in elevating our species, we should not lower the status of other highly intelligent species.
Judge Fahey recognized that chimpanzees “are autonomous, intelligent creatures” and urged his fellow Judges to address the “manifest injustice” involved in determining whether a nonhuman animal such as a chimpanzee has the right to seek a writ of habeas corpus when he is deprived of his liberty. “The question will have to be addressed eventually. Can a non-human animal be entitled to release from confinement through the writ of habeas corpus? Should such a being be treated as a person or as property, in essence a thing?” Judges will “have to recognize its complexity and confront it.” The answer to the question of whether a being has the “right to liberty protected by a writ of habeas corpus”:
will depend on our assessment of the intrinsic nature of chimpanzees as a species. The record before us in the motion for leave to appeal contains unrebutted evidence, in the form of affidavits from eminent primatologists, that chimpanzees have advanced cognitive abilities, including being able to remember the past and plan for the future, the capacities of self–Awareness and self–Control, and the ability to communicate through sign language. Chimpanzees make tools to catch insects; they recognize themselves in mirrors, photographs, and television images; they imitate others; they exhibit compassion and depression when a community member dies; they even display a sense of humor. Moreover, the amici philosophers with expertise in animal ethics and related areas draw our attention to recent evidence that chimpanzees demonstrate autonomy by self–Initiating intentional, adequately informed actions, free of controlling influences.
Next he chastised both the First and Fourth Departments for mistakenly insisting that the NhRP “does not challenge the legality of the chimpanzees’ detention, but merely seeks their transfer to a different facility,” and concluded that
In the interval since we first denied leave to the Nonhuman Rights Project (citation omitted). I have struggled with whether this was the right decision. Although I concur in the Court’s decision to deny leave to appeal now, I continue to question whether the Court was right to deny leave in the first instance. The issue whether a nonhuman animal has a fundamental right to liberty protected by the writ of habeas corpus is profound and far-reaching. It speaks to our relationship with all the life around us. Ultimately, we will not be able to ignore it. While it may be arguable that a chimpanzee is not a “person,” there is no doubt that it is not merely a thing.
A month later something extraordinary occurred again. Embedded in a ruling in a criminal case about vandalized cars that addressed the defendant’s claim that an auto dealership was not a “person” because it was not a human, the Fourth Department signaled that that it might have embraced the decision of Judge Fahey, who had been a judge in the Fourth Department when the Kiko decision had been issued.  The court rejected the defendant’s argument that an auto dealership is not a person. Citing Kiko’s case among several non-New York cases, it found it to be “common knowledge that personhood can and sometimes does attach to nonhuman entities like corporations or animals (citations omitted).
Indeed, the Court of Appeals has written that personhood is ‘’not a question of biological or ‘natural’ correspondence …’ In each of its eleven trial court hearings and appeals, the NhRP had repeatedly stressed the importance of this 1972 Court of Appeals decision, Byrn v. New York City Health & Hospitals Corp., which made clear that “human” and “person” were not synonyms and that, while a fetus was a human being, it was not a person. But only a single lower court had ever mentioned it.
We claimed at the time Fahey’s opinion was published that it had opened the door to nonhuman animal personhood in New York and throughout the United States. A month later, the Fourth Department walked right through that doorway. Taken together, the two cases constitute a huge breakthrough for legal personhood for nonhuman animals in the New York and United States.
Next week, the NhRP will seek a writ of habeas corpus on behalf of a new nonhuman animal client imprisoned in New York in a trial court that lies within the appellate jurisdiction of the Fourth Department. Perhaps the trial court will issue the writ on authority of the Graves case. If it refuses, the NhRP will appeal to the Fourth Department.
In addition, we continue to litigate our two Connecticut habeas corpus cases involving elephants and are preparing to litigate cases in California while seeking the passage of rights ordinances in city councils in California on behalf of nonhuman animals. We will, of course, make the Fahey and Fourth Department decisions front and center in all our arguments in every venue.
As I explained in Letter #1, even when demands for legal change are based upon scientific discovery, evolution in morality, and good public policy, as are the NhRP’s demands, they will inevitably encounter strong headwinds. The long and painful struggles for the personhood and legal rights of traditionally disenfranchised human groups demonstrate that the gestalt shift that is underway — changing the status of nonhuman animals from “thing” to “person” — will demand a clear long-term strategy, smart and flexible tactics, effective networking, a broad political base, and perhaps most importantly, sheer persistence in the face of multiple rejections.
This pair of recent New York opinions suggest that the long-term strategy the NhRP has spent decades constructing may be beginning to bear fruit. That is because our strategy has long been grounded upon the assumption that fair-minded judges persistently exposed to the existing overwhelming expert evidence of the complex cognition and autonomy of our nonhuman animal clients, coupled with powerful mainstream legal arguments, will struggle in good faith to overcome any implicit negative biases to arrive at the legally and morally correct decision that at least some nonhuman animals deserve legal personhood and those fundamental rights that protect their fundamental interests.
Steven M. Wise began his mission to gain rights for nonhuman animals in 1985. He holds a J.D. from Boston University Law School and a B.S. in chemistry from the College of William and Mary. He has practiced animal protection law for four decades and is admitted to the Massachusetts Bar. Professor Wise taught the first class in “Animal Rights Law” at the Harvard Law School and has taught “Animal Rights Jurisprudence” at the Stanford Law School, as well as the University of Miami, St. Thomas, and John Marshall Law Schools, and is currently teaching “Animal Rights Jurisprudence” at the Lewis and Clark Law School and Vermont Law School. He is the author of four books: Rattling the Cage — Toward Legal Rights for Animals; Drawing the Line — Science and the Case for Animal Rights; Though the Heavens May Fall — The Landmark Trial That Led to the End of Human Slavery; and An American Trilogy — Death, Slavery, and Dominion Along the Banks of the Cape Fear River. His TED TALK from the TED2015 Conference in Vancouver, Canada was released in May of 2015, and has over one million views.
In the Matter of the Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 31 N.Y. 3d 1054 (2018)(Fahey, J. concurring).
 Id. at 1057, citing “Matter of Nonhuman Rights Project Inc. v. Lavery, 152 A.D.3d 73, 78 [1st Dept. 2017] and People ex rel. Nonhuman Rights Project v. Lavery, 124 A.D.3d 148, 152, [3d Dept. 2014] [stating that chimpanzees cannot bear any legal duties, submit to societal responsibilities or be held legally accountable for their actions’] )”.
 Id. at 1057 (emphasis added)
“see Nonhuman Rights Project, Inc., 152 A.D.3d at 78, 54 N.Y.S.3d 392 [stating that petitioner’s argument “that the ability to acknowledge a legal duty or legal responsibility should not be determinative of entitlement to habeas relief, since, for example, infants cannot comprehend that they owe duties or responsibilities and a comatose person lacks sentience, yet both have legal rights … ignores the fact that these are still human beings, members of the human community”] . Id.
Nonhuman Rights Project, Inc. on Behalf of Tommy v. Lavery, 31 N.Y. 3d 1054, 1057 (2018)(Fahey, J., concurring).
 Id. at 1059.
Id. at 1056.
 (citations omitted)
 Id. at 1058, 1059
 Id. at 1259
 People v. Graves, 78 N.Y.S. 3d. 613 (4th Dept. 2018)
 Id. at 617
 Id., citing Byrn v. New York City Health & Hospitals Corp, 31 N.Y. 2d. 194, 201 (1972)