Mamani et al. v. Sánchez de Lozada, and Mamani et al. v. Sánchez Berzain

Court	United States Court of Appeals for the Eleventh Circuit, United States
Case number	09-16246 & 10-13071
Decision title	Decision on Appeal
Decision date	29 August 2011
Parties	Eloy Rojas Mamani Etelvina Romas Mamani Sonia Espejo Villalobos Hernan Apaza Cutipa Juan Patricio Quispe Mamani José Carlos Sánchez Berzaín Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante
Categories	Crimes against humanity
Keywords	Crimes against humanity; murder; “Black October”; Aymara communities
Links	Decision on Appeal
Other countries involved	Bolivia

Summary

Nine relatives of people killed during a series of national protests in Bolivia in October 2003, brought a case in the U.S. against the former President of Bolivia, Sánchez de Lozada, and the former Minister of Defence of Bolivia, Sánchez Berzaín. The plaintiffs claimed that Sánchez de Lozada and Sánchez Berzaín were responsible for the killing of more than 400 people in Bolivia during the suppression of the protests directed against the government’s policies. In particular, the plaintiffs claimed that Sánchez de Lozada and Sánchez Berzaín gave orders to the Bolivian security forces to use deadly force against protestors. The plaintiffs asked for compensation. On 29 August 2011, a U.S. Court of Appeals dismissed their claims because they had not presented enough evidence to establish a link between both Sánchez de Lozada and Sánchez Berzaín and the killings.

Procedural history

On 17 September 2007, a case was filed in the U.S. Federal Court in the District of Maryland against Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante, the former President of Bolivia. On the same day, another case was filed in the Southern District of Florida against José Carlos Sánchez Berzaín, the former Minister of Defence. The accused were charged with planning and ordering extrajudicial killings of civilians, crimes against humanity, and wrongful death committed between September and October 2003 in an effort to repress protests in Bolivia. The nine plaintiffs, who were relatives of the people killed, requested compensatory and punitive damages. In their petitions, the plaintiffs relied on the Alien Tort Statute (ATS), the Torture Victim Protection Act (TVPA), and both Florida and Bolivian law.

On 16 May 2008, the two cases were merged for pre-trial purposes.

In June 2008, the immunity of the accused was waived by the Government of Bolivia. In October 2008, the waiver was accepted by the U.S. Government.

On 24 October 2008, the plaintiffs opposed the defendants' joint motion to dismiss. On 19 December 2008, the defendants filed a supplemental memorandum in support of the joint motion to dismiss.

On 9 November 2009, the defendants’ motion to dismiss the amended complaint was granted in part, but also denied in part. The decision ordered the claims for crimes against humanity, extrajudicial killings, and wrongful death to proceed. Furthermore, it reaffirmed that the U.S. courts can hear actions brought against those who commit human rights abuses, and that foreign heads of state cannot act with impunity.

On 9 December 2009, the defendants filed a notice of interlocutory appeal, a motion for stay pending appeal, and a motion for a certificate of appealability.

In January 2010, plaintiffs filed responses in opposition to the defendants’ motions, and a motion to certify defendants’ appeal as frivolous. In February 2010, defendants filed responses in support of both of their motions.

On 16 March 2010, the defendants' motion to stay the case pending appeal was granted.

On 15 July 2010, the defendants filed an appeal with the U.S. Court of Appeals for the Eleventh Circuit.

On 1 October 2010, the defendants filed their opening appellate brief.

On 6 October 2010, the plaintiffs filed their opening appellate brief.

On 17 May 2011, the oral arguments were conducted.

More documents:

Defendants' Joint Motion to Dismiss, 30 May 2008
Plaintiffs' Opposition to Defendants' Joint Motion to Dismiss, 23 June 2008
Defendants' Reply in Support of Joint Motion to Dismiss, 21 July 2008
Plaintiffs’ Surreply to defendants' motion to dismiss (Part 1, Part 2), 5 August 2008

Related developments

On 16 March 2012, a consent motion was filed by plaintiffs and defendants to stay the case pending judgment by the Supreme Court in the case of Kiobel v. Royal Dutch Petroleum Co.

On 6 June 2013, plaintiffs and defendants filed a consent motion to reopen the case.

On 7 June 2013, the consent motion was granted.

On 25 June 2013, the plaintiffs filed an amended complaint. The amended complaint provided more allegations about the linkage between the defendants and the killings.

On 19 September 2013, the defendants filed a motion to dismissplaintiffs’ amended complaint.

On 18 December 2013, the plaintiffs filed their opposition to defendants’ motion to dismiss.

On 20 May 2014, Judge James Cohn of the U.S. District Court for the Southern District of Florida allowed the claims brought under the TVPA to proceed, because the plaintiffs had pled sufficient facts that ‘plausibly suggest that these killings were deliberate’, and because there were adequate allegations that the accused were responsible for the killings.

Proceedings in Bolivia:

In November 2003, an application was filed with the Supreme Court of Justice by the Attorney General’s Office in La Paz, requesting political and criminal proceedings to be initiated against former Bolivian President Sánchez de Lozada and his supporters.

On 14 October 2004, the Congress authorised the initiation of the proceedings.

At the end of October 2004, the investigation commenced.

In February 2005, the Attorney General’s Office sought an injunction against Sánchez de Lozada.

In November 2008, Bolivian officials requested the extradition of Sánchez de Lozada and two other defendants from the U.S.

On 18 May 2009, the trial against Sánchez de Lozada and 17 other former government officials commenced before the Bolivian Supreme Court. Sánchez de Lozada was tried in absentia.

On 30 August 2011, the Supreme Court convicted seven of the defendants. There was no verdict against Sánchez de Lozada because he was at large.

In September 2012, the U.S. Government rejected the extradition request.

Legally relevant facts

Sánchez de Lozada was born on 1 July 1930 in La Paz, Bolivia. He was President of Bolivia from 1993 until 1997, and for a second time from 2002 until 2003.

In September and October 2003, Sánchez de Lozada signed an agreement with U.S. oil companies for the sale and export of natural gas. Mass protests followed. The protests against the new policies were suppressed by the Bolivian security forces. The suppression came to be known as “Black October”. The order for the suppression was given by Sánchez de Lozada and Sánchez Berzaín, the former Minister of Defence. The order allowed the Bolivian security forces to use deadly force against unarmed civilians. During the suppression, 67 men, women, and children were killed, and more than 400 were injured, almost all of them from the indigenous Aymara communities.

Core legal questions

Did the plaintiffs state a plausible claim for relief against Sánchez de Lozada and Sánchez Berzaín?

Specific legal rules and provisions

Alien Tort Claims Act of 1789 (Title 28 U.S. Code, Chapter 85, Section 1350)

Torture Victim Protection Act of 1991, United States:

Section 3(a) - Definitions (extrajudicial killing)

Court's holding and analysis

The Court of Appeals for the Eleventh Circuit ruled that the plaintiffs failed to state a plausible claim for relief against Sánchez de Lozada and Sánchez Berzaín.

The Court stressed that ‘federal courts must act as vigilant doorkeepers and exercise great caution when deciding either to recognize new causes of action under the ATS or to broaden existing causes of action’ (p. 7). Therefore, the Court analysed in depth whether the violation alleged by the plaintiffs was actionable and plausible.

According to the Court, any such plausible claim should present facts that would allow the Court to draw reasonable inference for the link between the accused and the crime, and not merely to show consistency (p. 10). This link was necessary because of the absence of strict liability for national leaders at the top of the long chain of command (p. 14). The Court reached the conclusion that plaintiffs failed to state a plausible claim.

In respect of the charges of extrajudicial killing, the Court ruled that the plaintiffs failed to show that the killings were deliberate, what a minimum requirement for extrajudicial killing is (p. 15).

The Court also dismissed the factual allegations with respect to crimes against humanity because they were ‘insufficient’ (p. 18).