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Judges hear chimp’s plea to be free, and retired


ALBANY, N.Y. » In a case closely watched by animal rights activists, legal curiosity seekers and unknown numbers of circus owners, a state appellate court heard arguments here on Wednesday about whether a chimpanzee can be considered a "legal person," and — with human aid — sue for his freedom.

The action was brought on behalf of Tommy, a 26-year-old chimp with no job, no criminal record and an allegedly grimy living situation in a small cage in the city of Gloversville, about 50 miles northwest of Albany.

Tommy’s legal team — the Nonhuman Rights Project, a Florida-based animal rights group — lost its initial bid to have a lower-court judge rule whether the chimp had been unlawfully imprisoned. Its appeal was heard Wednesday by a somewhat quizzical five-judge panel.

"He’s detained against his will," said Steven M. Wise, the president of the rights group, who argued the case, adding that no chimpanzee would want to live "in the conditions in which he’s living."

"He can understand the past, he can anticipate the future," Wise said, "and he suffers as much in solitary confinement as a human being."

The respondents in the case — Patrick and Diane Lavery, the Gloversville couple who own Tommy — did not appear in court, nor did a lawyer representing them. They did speak out last December, however, saying that they rescued Tommy from his previous home, and if others had seen those conditions, "they would jump up and down for joy about where he is now," Patrick Lavery said then.

The hearing, which drew dozens of spectators, dealt with whether judges believed Tommy was entitled to a writ of habeas corpus, a legal means to address the unlawful detention of prisoners.

Wise’s group is pursuing a number of cases around New York seeking the release of chimpanzees, who, as activists point out, share nearly all the same DNA as human beings but few of their rights. Wise said his group would also soon be filing suits over apes in other states, "and some elephants, too."

Animal rights advocates continue to gain momentum both nationally, with new laws addressing the treatment of farm animals, and in New York, where a bill was signed in August by Gov. Andrew M. Cuomo banning direct contact between visitors and captive wild animals, even to take a photograph.

The issues raised by the case Wednesday touched on whether a chimp — an "autonomous, self-determining being," as Wise put it — should have basically the same legal standing as a child, who could be protected by the state.

During the 20-minute hearing, presiding Justice Karen K. Peters also digressed to consider such questions as "How does one define a cage?" — a certain poem by Maya Angelou was briefly mentioned — and to chide Wise for suggesting that the judicial relief being sought was equivalent to freeing a human being from slavery.

"You might want to pursue another argument," Peters said.

Wise quickly said that he was "in no way comparing Tommy" to a slave.

Natalie K. Prosin, the project’s executive director, said they discovered Tommy last fall after reading a local newspaper article. The group filed suit on his behalf in Fulton County, New York, in December. A decision could be made in four to six weeks.

After the hearing, Wise expressed hope that Tommy, if deemed a person, might soon be able to retire, as many New Yorkers do, to Florida.

A Fort Pierce preserve called Save the Chimps offers island living, hundreds of other chimps, and, yes, plenty of bananas.

"It’s kind of a Club Med for chimpanzees," Wise said, "which, if I were a chimpanzee, I would go to."

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