Cheetah’s Kin Not Entitled to Writ of Habeas Simia

Nonhuman Rights Project, Inc. v. Lavery, (N.Y. 2018)

Tommy and Kiko, two chimpanzees—and likely distant cousins of Cheetah, Tarzan’s beloved simian companion—are not entitled to a writ of habeas corpus. A nonprofit advocacy group sued to secure legal rights for the pair. The group sought their liberation from cages at their owner’s home in a New York residential neighborhood. A writ of habeas corpus (Latin for “have you the body”) is used to challenge conditions of incarceration—at least for humans.

The court upheld a lower court’s denial of a writ of habeas corpus without opinion, with one judge explaining his ethical turmoil with the court’s decision to not address the contours of simian rights. Judge Eugene M. Fahey wrote that the court can’t avoid the issue forever.

The concurring opinion observed that chimpanzees aren’t persons because they cannot “bear legal duties, or be held legally accountable for their actions.” Notwithstanding Judge Fahey opined that the legal inquiry ought to be whether chimpanzees have the right to liberty protected by habeas corpus. He cited evidence 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.”

As a big Tarzan fan who saw all the movies at Saturday matinees over a half-century ago, I could have told Judge Fahey that Cheetah and his cousins are all that. According to Judge Fahey, “While it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”

Postscript: Note to Judge Fahey: In Tarzan the Fearless (1933), the role of Cheetah was played by David Holt, a six-year-old child actor in a hairy costume. The actual Cheetah passed on to the great jungle in the sky, outliving his co-stars Johnny Weissmuller, who died in 1984, and Maureen O’Sullivan, who died in 1998.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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