Dec. 2, 2013— -- Tommy, a 26-year-old chimpanzee owned by a couple in upstate New York, has a lawyer and a trust fund in a bid by a nonhuman rights group to have him declared the first animal to be considered a person under the law.
In what may be the first case of its kind, the Boston-based Nonhuman Rights Project (NhRP) is asking a court to free Tommy from what they describe as a "small, dank, cement cage in a cavernous dark shed" in Gloversville, N.Y.
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NhRP argues, based on "law, science and history" that the chimp has all the rights of habeas corpus -- a writ that requires a person under detention to be brought before a judge -- so that he may be released.
Tommy is on the grounds of Circle L Trailer Sales, Inc., owned by Patrick and Diane Lavery, according to NhRP.
Diane Lavery told ABCNews.com by phone from her part-time home in Florida that she and her husband had not been served court papers.
"I have no idea what is going on," she said. "I haven't seen anything."
Lavery said they are owners of Circle L Trailer Sales, but when asked about housing a chimpanzee, she said, "no comment."
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The group says animals like chimpanzees possess: "complex cognitive abilities as autonomy, self-determination, self-consciousness, awareness of the past, anticipation of the future and the ability to make choices; display complex emotions such as empathy; and construct diverse cultures."
The most important cognitive ability is autonomy, according to NhRP, which includes, "possession of an autobiographical self, episodic memory, self-determination, self-consciousness, self-knowing, self-agency, referential and intentional communication, language planning, mental time-travel," among other traits.
"We think there is sufficient evidence for all four groups of apes as well as elephants, whales and dolphins." -- Steven M. Wise
The petition, filed today in the State of New York Supreme Court of Fulton County, asks that Tommy be granted immediate release, citing common law that has "issued writs of habeas corpus for slaves who were not legal persons at the time so that the issue of personhood and the legality of confinement could be resolved."
"New York statutory and common law do not limit legal personhood to Homo sapiens and have already conferred legal personhood status on non-human domestic animals who are the beneficiaries of trusts," says the petition. "Courts also have routinely extended rights to non-human entities such as corporations."
NhRP argues that these animals deserve fundamental rights such as bodily integrity and bodily liberty, in hopes of breaking down for the first time the barrier between animals and humans.
Today animals cannot be beaten or deprived of food, shelter or medical care, but they are still legally considered property.
"We are talking about bringing these lawsuits on behalf of nonhuman animals because there is a lot of scientific evidence that they, too, are autonomous," said Tommy's self-appointed lawyer, Steven M. Wise, author of "Rattling the Cage: Toward Legal Rights for Animals."
"We think there is sufficient evidence for all four groups of apes as well as elephants, whales and dolphins," he said. "We are going to be busy for a long time."
The organization says it has established a trust for the care of Tommy, who is named as beneficiary.
Wise said he will ask the judge to transfer Tommy to the North American Private Sanctuary Alliance in Wauchula, Fla. Founded in 1993, the 120-acre facility houses 45 great apes, many of them former research animals.
Since 1983, as president of the Animal Legal Defense Fund, Wise said he has taught animal rights at Harvard Law School, authored several books on the subject and organized dozens of volunteers to found NhRP.
"Tommy is in a small cage in a small room that is part of a very large edifice – almost like a huge warehouse," said Wise, who said he had visited the large commercial property and got a glimpse of the chimp. He said the building houses 10 other empty cages.
"They had a lot of chimps before that were primarily used in entertainment," he said.
If the court hears the case, it will decide whether Tommy has the capacity for rights and if he does, if he can be released.
Wise said that NhRP decided to take up the case in the state, and in March went looking for caged animals to be plaintiffs in testing the law. "We tried to identify every chimp in New York," he said.
Three of the seven identified -- Reba, Charlie and Merlin -- had died, according to Wise. Two are currently being kept privately in a cement storage facility in Niagara Falls among other monkeys and exotic birds; two others are being used for locomotion research at Stony Brook University.
In October, Wise said they received word of a commercial operation that sold trailers and reindeer, and it was there they found Tommy and videotaped his living quarters.
"Our goal is to make sure that we move them from a legal status with no rights or capacity to rights for personhood so we can litigate on their behalf," said Wise. "They have a fundamental right to liberty and you can't imprison them, or use them for biomedical research or keep dolphins in aquarium."
Other lawyers have been critical of the effort to give personhood to animals, most notably Richard Epstein, an NYU law professor.
Rebutting Wise at a 2000 debate at Northwestern Law School, Epstein said the definition of personhood is "someone who is part of the same species -- who could interbreed."
He argued that animals should be free from torture but should not have legal rights.
"If you go the whole nine yards you face two major questions: Which animals do it? Chimps and bonobos are obvious, but what about other apes that are small and not friendly," said Epstein at the debate. "Or cattle or domesticated sheep or squirrels or rats. How far do we want to run with this?
"We can find emotions in rats – they have endorphins, too. The number of genes in fruit flies and human beings are the same -- 60 percent."
But Wise told ABCNews.com that animals like Tommy would be treated more like a "4- or 5-year-old human child" under the law.
"They have the capacity for rights," he said. "But you can't sue them criminally or prosecute them civilly. They are autonomous enough to have fundamental rights but not mature enough to have criminal or civil liability."