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Top court rules again: Kiko, the Niagara Falls chimp, isn't a person

The state's highest court has ruled: Kiko isn't entitled to habeas corpus.

The New York Court of Appeals this week again denied an appeal of lower court rulings that two adult chimpanzees, including one named Kiko held in captivity in Niagara County, cannot be granted the legal status of humans as a means to secure their freedom.

But a judge on the state's top court believes it won't be the end of the debate.

"The question will have to be addressed eventually," wrote Associate Judge Eugene M. Fahey. "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?"

The decision Tuesday by the Court of Appeals put an end to a yearslong court battle by animal rights activists who had sought to use the two chimps to gain "legal personhood" for the animals.

The Nonhuman Rights Project brought the lawsuit in 2013 on behalf of Tommy and Kiko, two captive chimpanzees "confined by their owners to small cages in a warehouse and a cement storefront in a crowded residential area," the decision Tuesday stated. The case wound its way through the court system for years. In 2015, the Appeals Court declined, without comment, to hear an appeal of the case, which earlier had been rejected by two mid-level Appellate Division courts.

In concurring with the lower court to deny a motion to reargue the case, Fahey underscored that it was "not a decision on the merits of the petitioner's claim."

Fahey noted the case raises unanswered questions.

"The inadequacy of the law as a vehicle to address some of our most difficult ethical dilemmas is on display in this matter," Fahey wrote.

Kiko is a roughly 33-year-old chimp owned by Niagara Falls primate specialist Carmen Presti.

Presti declined Wednesday to comment, saying the case had gone on too long and he didn't want to speak about it. In 2015, he expressed relief after the Appeals Court declined to hear the case, and called the case ludicrous.

Two years earlier, Presti told The Buffalo News that it would open up a can of worms to give chimpanzees the protection of habeas corpus laws.

“The next thing you know, our farmers will be under attack, SPCAs and so on. The next thing you know, chickens are going to be having human rights,” Presti said in a 2013 story in The News.

The effort by the Nonhuman Rights Project to get chimpanzees classified as having "personhood" has drawn national attention, including stories in The New York Times Magazine and Wired.

The organization on Tuesday called Fahey's opinion a "striking personal reflection" and highlighted the fact that Fahey wrote that he had "struggled" with whether the court's decision in 2015 deny an appeal "was the right decision."

"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," Fahey wrote. "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."

In the opinion, Fahey wrote that the state's habeas statute does not define "person," but noted that "dictionaries instruct us that the meaning of the word extends to any entity ... that is recognized by law as having most of the rights and duties of a human being."

While the Appellate Division has reasoned that chimpanzees are not persons because they lack the capacity to bear legal duties and cannot be held legally accountable for their actions, Fahey's opinion Tuesday noted that the same is true of human infants or comatose human adults.

"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," Fahey wrote.

The Appellate Division's conclusion that a chimpanzee cannot be considered a person 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, he wrote.

"The better approach in my view is to ask not whether a chimpanzee fits the definition of a person or whether a chimpanzee has the same rights and duties as a human being, but instead whether he or she has the right to liberty protected by habeas corpus. That question, one of precise moral and legal status, is the one that matters here. Moreover, the answer to that question will depend on our assessment of the intrinsic nature of chimpanzees as a species," Fahey wrote in the court document.

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