A group of animal rights activists filed the first of a series of lawsuits in New York State yesterday, calling upon the courts to grant three captive chimpanzees "the right to bodily liberty and to order that they be moved to a sanctuary that’s part of the North American Primate Sanctuary Alliance (NAPSA)." The first unprecedented habeus corpus motion concerns the captivity of Tommy, a chimpanzee at "Santa's Hitching Post" in Gloversville, in upstate New York. According to the Nonhuman Rights Project:

When we visited Tommy, we found him in a small cage at the back of a dark shed at a trailer sales park that’s also home to a business called Santa’s Hitching Post that rents out reindeer for Christmas shows and other entertainment. Tommy was all by himself—his only company being a TV on a table on the opposite wall. Three years ago, to the best of our knowledge, there were four chimpanzees at Santa’s Hitching Post, and not long before that there were six.

The legal cause of action that we are using is the common law writ of habeas corpus, through which somebody who is being held captive, for example in prison, seeks relief by having a judge call upon his captors to show cause as to why they have the right to hold him.

More specifically, our suits are based on a case that was fought in England in 1772, when an American slave, James Somerset, who had been taken to London by his owner, escaped, was recaptured and was being held in chains on a ship that was about to set sail for the slave markets of Jamaica. With help from a group of abolitionist attorneys, Somerset’s godparents filed a writ of habeas corpus on Somerset’s behalf in order to challenge Somerset’s classification as a legal thing, and the case went before the Chief Justice of the Court of King’s Bench, Lord Mansfield. In what became one of the most important trials in Anglo-American history, Lord Mansfield ruled that Somerset was not a piece of property, but instead a legal person, and he set him free.

New York State recognizes the continuing viability of the common law writ of habeas corpus. New York case law permitted slaves to use the writ to challenge their status as legal things and establish their right to freedom. And the state also adopted Lord Mansfield’s celebrated habeas corpus ruling in the Somerset case.

Whatever happens in the trial court, however, New York allows for an automatic appeal of an adverse habeas corpus decision. And either side can appeal the ruling. So our case will be heard, sooner or later, by New York’s intermediate appellate court, and quite possibly by New York’s highest court, the State Court of Appeals. And, from many points of view, that’s where we would like the case to be heard, since what happens at the appellate level has much wider reach than at the trial level.

Patrick Laverly, the owner of Santa's Hitching Post, categorically denies the lawsuit's depiction of Tommy's lifestyle. "He's got cable TV," Laverly tells us. "He's got a stereo system. We're licensed by the USDA, which does regular random inspections, and the whole facility was built bigger than their specifications. Tommy was rescued—we were asked to take him in—and where he came from was an old plywood crate that he couldn't stand up in."

Laverly says he's tried to find a new home for Tommy, who is approximately 42 and has been in his custody for "maybe" ten years. "If the people causing trouble for me saw where he was and where he is now, they would shake my hand," Laverly insists. "Chimps aren't easy to get rid of. Zoos don't want them, private individuals can't own them without federal licensing. And if we didn't have a good facility, the USDA would have taken him away a long time ago."

According to Laverly, he's tried to give Tommy to a sanctuary but has been repeatedly rebuffed—he claims the sanctuaries are too full and, in the end, aren't as good as Tommy's current home. "I've been to a lot of sanctuaries and I've never seen sanctuaries that have cable TV for their chimps, and stereo systems for them, and the building all decorated to make it look like a jungle," Laverly tells us. "He's only in that cage when he eats or watches TV. We have one whole wall in our facility that opens up so it's like he's outdoors all the time. In the winter we have to close it up, but he's got access to probably 60-70 feet; that's the size of his cage."

Two other chimps in captivity at Santa's Hitching Post have previously died, but of natural causes, according to Laverly. One chimp died of "old age" in her '70s, while Laverly says another died from an aneurysm. "I'm all for the sanctuaries but I have never yet out of all the chimps I've placed been able to get a sanctuary to take one."

We shared Lavery's comments with Michael Mountain at The Nonhuman Rights Project, and he countered, "If Mr. Lavery really wants to place Tommy in one of the best sanctuaries in the country, then he must be pleased by what we’re doing. We’re working with the North American Primate Sanctuary Alliance (NAPSA), which is made up of the best sanctuaries in the country and has agreed to place Tommy in the sanctuary that best suits his needs.

"The conditions in which we found Tommy were simply appalling. If Mr. Lavery is proud of the conditions he is in, why wouldn’t he simply invite the media in to see what we saw? Tommy was in a small cage in a cavernous dark shed. All he had for company was a TV."

The group will file another habeus corpus motion today in Niagara Falls on behalf of a chimpanzee who is deaf and living in a private home. David Favre, a professor at Michigan State University College of Law and an expert on animal law, told Reuters this is the first habeas petition filed on behalf of an animal. "The focus here is whether a chimpanzee is a 'person' that has access to these laws," Favre said.

The motion, filed by attorney Steven Wise, the author of the book Rattling the Cage: Toward Legal Rights for Animals, argues thus:

New York has always recognized the common law writ of habeas corpus and there is no question this Court would release Tommy if he were a human being, for his detention grossly interferes with his exercise of bodily liberty. The question before this Court is not whether Tommy is a human being—he is not—but whether, like a human being, he is a “legal person” under the law of New York, possessed of the common law right to bodily liberty protected by the common law writ of habeas corpus.

“Legal person” has never been a synonym for “human being.” It designates Western law’s most fundamental category by identifying those entities capable of possessing a legal right.