ALBANY, N.Y. (CN) - Supporters of a chimpanzee held in captivity in rural New York told an appeals court Wednesday to consider "Tommy" a "legal person" with rights under common law.
Patrick and Diane Lavery took Tommy in about a decade ago after the chimp's previous owner no longer could care for it. The Laverys, who live near Gloversville, about an hour west of Albany, own a transport-trailer business and operate a reindeer farm.
When the Nonhuman Rights Project of Coral Springs, Fla., filed suit in December on Tommy's behalf, the chimpanzee was 26 years old. It equates the cage Tommy where the Laverys keep Tommy to solitary confinement, and wants the animal moved to a chimpanzee sanctuary.
A judge in Fulton County who shot down the group's writ of habeas corpus wished the group "good luck with your venture."
Steven Wise, attorney for the group, appeared before the Appellate Division of state Supreme Court in Albany on Wednesday to again seek Tommy's release from "illegal detention."
Tommy "could be a person" under the common-law definition, Wise said, urging the panel for a reversal.
Such a finding would not be the same as declaring the chimp a human being, Wise added.
"'Legal person' is a legal concept," he told the judges. "'Person' is not synonymous with 'human.'"
In a brief filed with the appeal, Wise and co-counsel Elizabeth Stein of New Hyde Park argued that "Tommy is a common law person entitled to the common law equality right to bodily liberty that the common law writ of habeas corpus protects."
While the brief explained how slaves used habeas corpus to challenge their imprisonment as "things," and Wise cited the same line of reasoning in court, the argument did not sit well with Presiding Justice Karen Peters.
"I keep having a difficult time with you using slavery" as a comparison, she said. "My suggestion is you move in a different direction."
Wise apologized and instead talked about children. "We don't put them in a cage," he said.
In a press conference that followed the half-hour court hearing, Wise apologized again, saying the comparison was to the "thinghood" that Tommy shared with slaves. "Now, he's a thing," he said of the chimp.
Asked about the general understanding of habeas corpus being used to release someone from detention, Wise said the goal was to place Tommy in a primate sanctuary with other chimpanzees, not to free him.
"Like a child, Tommy can't be released from captivity and let to run in the street," he said.
Wise said the chimp probably had the intelligence of a 5- to 8-year-old child.
He told the assembled reporters, who also represented international media outlets, that the Nonhuman Rights Project became interested in seven chimps held in captivity in New York in March 2013 and filed suit on Tommy's behalf after three of them died.
"We felt obligated" to bring the habeas corpus action after that, he said.
No one presented oral arguments to the court on behalf of the Laverys, Tommy's keepers.
A letter posted on the Nonhuman Rights Project website indicates their attorney, Arthur Carl Spring of Johnstown, told the appellate court he planned to submit no briefs.
"My clients had no involvement whatsoever in the lower court's proceedings and/or decision," it states. "Therefore, my clients will not be submitting a brief at this time. We wish to rest on the record and the determination of the lower court."
The Nonhuman Rights Project had offered to settle with the Laverys and work with them to transfer Tommy to a sanctuary, according to another letter on the site.
When they did not respond and Patrick Lavery made what the letter calls "public statements" about moving Tommy out of New York, the group filed a preliminary injunction with the appellate court to block relocation.
The court granted the injunction in July, according to the website.
Wise said he expects a decision on the appeal in four to six weeks. Depending on the outcome, further appeal to New York's high court, the Court of Appeals, may be necessary, he said.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.