SB 1057: Terrorism: civil action.

Existing law provides that every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily harm, and from injury to his or her personal relations. Existing law authorizes the California Victim Compensation and Government Claims Board to compensate a victim of a crime from the Restitution Fund, a continuously appropriated fund, for pecuniary loss incurred as a direct result of the crime, when the board determines it will best aid the person seeking compensation.

This bill would authorize a person who is injured by an act of terrorism, as defined, to bring an action to recover damages against a person or entity who committed the act of terrorism, aided the person or entity to commit the act or terrorism, or coerced, induced, or solicited the person or entity to commit the act of terrorism. The bill would provide that the amount awarded may be up to 3 times the damages actually incurred, but in no event less than $10,000. The bill would permit a civil action or proceeding under this section to be commenced at any time within 5 years after the injury caused by the act of terrorism is suffered, as specified.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2015-2016 Regular Session

Bill No: SB 1057 (Author:Anderson)

Version: February 16, 2016

Hearing Date: May 3, 2016

Fiscal: No

Urgency: No

Consultant: RD

SUBJECT

Terrorism: civil action

DESCRIPTION

This bill would authorize a person injured by an act of terrorism, as defined, to bring an action to recover damages against a person or entity who either: (1) committed the act of terrorism; (2) aided the person or entity to commit the act of terrorism, as specified; or (3) coerced, induced, or solicited the person or entity to commit the act of terrorism. An act of terrorism would include the commission of any one of specified acts, if the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion. Qualifying acts include, among others: killing of a human being, including unlawful homicide or manslaughter; arson; felony vandalism; robbery; rape; torture; looting; and carjacking.

The bill would provide that the amount awarded may be up to three times the damages actually incurred, but in no event less than $10,000. The bill would permit a civil action or proceeding under this section to be commenced at any time within five years after the injury caused by the act of terrorism is suffered, as specified.

BACKGROUND

Other states, including Arkansas and Tennessee, the author reports have enacted what is known as “Andy’s Law,” named after Private William “Andy” Long who was killed at a shooting at the Little Rock Mall Army Recruiting Center on June 1, 2009.

This bill seeks to enact “Andy’s Law” in this state and create a civil remedy against persons or entities who either: commit the act of terrorism; aid a person or entity to commit the act of terrorism; or coerce, induce, or solicit the person or entity to commit the act of terrorism, as specified.

CHANGES TO EXISTING LAW

Existing law provides that every person has, subject to the qualifications and restrictions provided by law, the right of protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations. (Civ. Code Sec. 43.)

Existing law provides that every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his or her rights. (Civ. Code Sec. 1708.)

Existing law provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury to another caused by his or her lack of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or from lack of ordinary care, brought the injury upon himself or herself. (Civ. Code Sec. 1714(a).)

Existing federal law, the Antiterrorism Act of 1990, establishes criminal offenses and penalties for acts of international and domestic terrorism, including criminal penalties for those who harbor or conceal terrorists, and those who provide material support to terrorists, provide material support or resources to designated foreign terrorist organizations, or who finance terrorism. (18 U.S.C. Sec. 2331 et seq.)

Existing federal law, the Antiterrorism Act of 1990, defines “international terrorism” to mean activities that:

• involve violent acts or acts dangerous to human life that violate federal or state law, or that would be a criminal violation if committed within the jurisdiction of the U.S. or of any State;
• appear to be intended: (i) to intimidate or coerce a civilian population; (ii) to influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
• occur primarily outside the territorial jurisdiction of the U.S., or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum. (18 U.S.C. Sec. 2331(1).)

Existing federal law, the Antiterrorism Act of 1990, defines “domestic terrorism” to mean activities with the following three characteristics:

• involve acts dangerous to human life that violate federal or state law;
• appear intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) affect the conduct of a government by mass destruction, assassination, or kidnapping; and
• occur primarily within the territorial jurisdiction of the U.S. (18 U.S.C. Sec. 2331(5).)

Existing federal law, the Antiterrorism Act of 1990, generally provides that any national of the U.S. injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate district court of the U.S. and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. (18 U.S.C. Sec. 2333(a).)

This bill would define “terrorism” as the commission of certain acts, if the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion. Qualifying acts, include, the following acts, as defined under various provisions of the Penal Code:

• killing of a human being, including unlawful homicide or manslaughter;
• kidnapping;
• arson;
• felony vandalism;
• assault with a deadly weapon or by means of force likely to produce great bodily injury;
• robbery;
• shooting at an inhabited dwelling or occupied motor vehicle;
• discharging or permitting the discharge of a firearm from a motor vehicle;
• rape;
• looting;
• aggravated mayhem;
• torture,
• carjacking; and
• threats to commit crimes which would result in death or great bodily injury.

This bill would also define the commission of the following acts as acts of terrorism, if the offender has the intent to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion:

• intentional infliction of great bodily injury upon a human being;
• using or directly employing against another person a weapon of mass destruction in a form that may cause widespread great bodily injury or death.
• using a weapon of mass destruction in a form that may cause widespread damage to or disruption of the food supply or “source of drinking water” as defined under the Health and Safety Code;
• using a weapon of mass destruction in a form that may cause widespread and significant damage to public natural resources, including coastal waterways and beaches, public parkland, surface waters, groundwater, and wildlife;
• using recombinant technology or any other biological advance to create new pathogens or more virulent forms of existing pathogens for use in any crime;
• giving, mailing, sending, or causing to be sent any false or facsimile weapon of mass destruction to another person, or placing, causing to be placed, or possessing any false or facsimile weapon of mass destruction, with the intent to cause another person to fear for his or her own safety, or for the personal safety of others; and
• knowingly threatening to use a weapon of mass destruction.

This bill would provide that a person who is injured by an act of terrorism may bring an action to recover damages against the following persons and entities:

• a person or entity who committed the act of terrorism;
• a person or entity who aided the person or entity to commit the act of terrorism; and
• a person or entity who coerced, induced, or solicited the person or entity to commit the act of terrorism.

This bill would provide that the amount awarded may be up to three times the damages actually incurred, but in no event less than $10,000. A prevailing plaintiff shall be awarded reasonable attorney’s fees and costs of investigation and litigation.

This bill would provide that all persons or entities who commit an act of terrorism, aid the person or entity to commit the act of terrorism, or coerce, induce, or solicit the person or entity to commit the act of terrorism, are jointly and severally liable for all damages, attorney’s fees, and costs of investigation and litigation.

This bill would provide that notwithstanding any law, a civil action or proceeding for an act of terrorism may be commenced at any time within five years after the injury caused by the act of terrorism. If a criminal prosecution proceeds against a person or entity who committed an act of terrorism, aided the person or entity to commit the act of terrorism, or coerced, induced, or solicited the person or entity to commit the act of terrorism, this bill would provide for the tolling of the statute of limitations during the pendency of that criminal prosecution.

This bill would define “aiding a person or entity to commit an act of terrorism” as raising, soliciting, collecting, or providing material support or resources with the intent that it will be used, in whole or in part, to plan, prepare, carry out, or aid in any act of terrorism, hindering the prosecution of terrorism, or the concealment of, or escape from, an act of terrorism. This bill would further define various terms for these purposes.

COMMENT

1. Stated need for the bill

According to the author:

On June 1st 2009, terrorism hit home in Little Rock, Arkansas when a Jihadist terrorist, Abdulhakim Mujahid Muhammad (formerly known as Carlos Bledsoe) shot two U.S. Army soldiers outside a recruiting office in a shopping mall. Killed in that attack was Private William “Andy” Long. Private Quinton I. Ezeagwula was wounded.

To fully comprehend the true nature of the threat of terrorism, one must understand that, though Muhammad had been labeled a “lone wolf,” such terrorism does not happen in a vacuum.

Before he became Abdulhakim Mujahid Muhammad, Carlos Bledsoe was recruited. He was indoctrinated. He was selected to receive training in Yemen and after completing that training, committed horrible acts of terrorism in what he himself termed “Jihad.”

Terrorism doesn’t just happen. It is perpetrated both by individuals that are motivated and trained, and by those who support their efforts with money and that motivation and training.

Currently, there is no avenue in California for victims of terrorism or their families to seek civil damages against those who facilitate acts of terrorism. The federal RICO [Racketeer Influenced and Corrupt Organizations] statute does not provide meaningful remedies because it only allows damages for business losses and property damage, and not for personal injury or wrongful death.

This bill would allow victims of terrorism and their families to begin to heal by allowing them to recover damages and attorney's fees from those who facilitate acts of terrorism. By giving victims and their families the legal tools to collect restitution by seizing assets will bring responsibility to those who up to now have been able to hide in the shadows of these heinous acts. [ . . . ]

2. This bill appears duplicative of existing civil actions

While the author references the federal Racketeer Influenced and Corrupt Organizations (RICO) Act (a federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization) as providing insufficient remedies to victims of terrorism or their families, there are a host of state laws that would provide for remedies for a victim of the various acts listed under the bill as acts of terrorism. In addition, to the extent that this bill’s definition of terrorism also potentially applies to acts of international terrorism, there are also remedies currently available under the Federal Antiterrorism Act.

First, the Antiterrorism Act (ATA) of 1990 provides for criminal and civil penalties for acts of international and domestic terrorism, including criminal penalties for those who harbor or conceal terrorists, and those who provide material support to terrorists, provide material support or resources to designated foreign terrorist organizations, or who finance terrorism. (18 U.S.C. Sec. 2331 et seq.) The ATA provides that any national of the United States injured in his or her person, property, or business by reason of an act of international terrorism, or his or her estate, survivors, or heirs, may sue therefor in any appropriate U.S. district court and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees. (See 18 U.S.C. Sec. 2333.)

Second, most, if not all, of the acts listed in this bill would arguably be subject to a civil cause of action under California law already, including causes of action for assault and battery, wrongful death, false imprisonment, damage to personal property, and negligent or intentional infliction of emotional distress, among others. This bill would appear to create an additional cause of action for a broad range of acts, based on the intent of the individual to intimidate or coerce the civilian population, to influence the policy of a unit of government by intimidation or coercion, or to affect the conduct of a unit of government by intimidation or coercion. (See Comment 3 for more.)

Ultimately, it appears that this bill seeks to establish liability for any persons or entities that “aided the person or entity to commit the act of terrorism” or that “coerced, induced, or solicited” the person or entity directly committing the act of terrorism, where secondary liability might not otherwise exist for such individuals under state law. (See Comments 4 and 5.) Also, as the bill is currently drafted, it is unclear whether this bill is aimed solely at domestic acts of terrorism, or if it is intended to also capture the commission of such terrorist acts outside of California, and perhaps internationally. To the extent that this bill seeks to address the shortcomings of the federal RICO statutes by allowing victims to seek relief against those who motivated and trained or otherwise financially supported the persons or entities who committed the acts of terrorism, a question arguably arises as to whether public policy would not be better served to address such acts by way of amending the state’s RICO statute, the California Control of Profits and Organized Crime Act (Pen. Code Sec. 186 et seq.), to allow for the criminal prosecution of these activities. Furthermore, given that the federal law provides for a similar civil cause of action under the ATA for acts of international terrorism, which are violent acts or acts dangerous to human life that violate federal or state law and that appear to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) affect the conduct of a government by mass destruction, assassination, or kidnapping, a question also arises as to whether the bill would be federally preempted to the extent that it could be interpreted to apply to create a cause of action for qualifying acts that are committed internationally.

Lastly, insofar as the bill also seeks to assist families of the victims to seek redress against these individuals who aided or were complicit in the act of terrorism, staff notes the bill only creates a civil action for “a person who is injured” by the act of terrorism (i.e., the direct victim of the killing, rape, torture, looting, arson, carjacking, or other qualifying act), and not for the person’s survivors or heirs.

3. Broad definition of terrorism could wholly reclassify certain existing crimes as terrorism and otherwise classify certain acts as an “act of terrorism” when tied to political beliefs or protests of government

This bill would define “terrorism” as the commission of certain acts, if the offender has the intent to: (1) intimidate or coerce the civilian population; (2) influence the policy of a unit of government by intimidation or coercion; or (3) affect the conduct of a unit of government by intimidation or coercion. The bill provides for a host of qualifying acts, including, not just the killing of a human being or kidnapping, but also acts such as arson, felony vandalism, robbery, looting, aggravated mayhem, and carjacking, among other things. Moreover, the bill would create a cause of action not only against the offender person or entity who committed the act, but also against any person or entity that either aided the offender to commit the act of terrorism, or coerced, induced, or solicited the offender to commit the act of terrorism. To this end, the bill would provide for the joint and several liability of these potential defendants, with respect to all damages (up to three times the actual damages, but in no event less than $10,000), attorney’s fees, and costs of investigation and litigation. In other words, the plaintiff victim could recover the damages from one, several, or all of the liable parties, regardless of each individual defendant’s exact share in the liability.

In doing so, a question arises as to whether a protester who, for example, vandalizes property in the midst of a political protest that seeks to influence government to bring an end to racial profiling or institutionalized discrimination in the criminal justice system, would hereinafter be classified a “terrorist.” Relatedly, would any other person or group organizing the protest be deemed to have “aided” this protestor who committed the “act of terrorism,” if the group generally made available to protestors, including the offender, “material support or resources,” such as signs (instruments of value) loudspeakers or bullhorns (communication equipment), or financed rentals of facilities for advance meetings for the protest (financial support or facilities), or bussing to the location of the protest (transportation)? Furthermore, to the extent that the bill provides no guidance as to what constitutes “coercing, inducing, or soliciting” a person or entity to commit the act of terrorism, would such an entity or other third party (i.e., fellow protestors) who does not otherwise provide material support or resources, nonetheless fall within the scope of this bill and be jointly liable, as long as they otherwise encouraged the commission of the act in other (direct or indirect) ways? By way of another example, would any group that advocates for the closing of women’s health clinics that provide access to abortions be liable under this bill if they had any sort of affiliation with a person who commits such terrorist acts of arson or vandalism against such a clinic?

Additionally, this bill would appear to reclassify as “terrorism” certain crimes that by their nature have the intent or effect of intimidating the civil population, whether it is a freeway shooter, or a serial killer, or serial rapist. Insofar as those victims have available causes of action under current law, this bill might not only be duplicative, but also create practical confusion for victims and potential defendants as to what statute of limitations would control the exact same set of circumstances.

4. Determining the intent of those who “aid” the commission of terrorist acts could prove difficult

Generally, a party does not have a duty to protect an individual from the acts of a third party, though there may be a duty to protect an individual when there is a special relationship between the parties, such as with the relationship between an innkeeper and guest, or business owner to the public on his or her property. Such “secondary” liability generally attaches the responsibility for harm or damages caused by a person (the person who is directly responsible and holds primary liability) to another person (who does not have the primary liability or obligation), when a party induces others to break the law or otherwise contributes to the breaking of the law, or when a party controls others who break the law. This is seen, for example, in cases where an employer is held to be vicariously liable for the negligent acts of his or her employees, or in the case of a parent’s imputed liability for the willful acts of his or her child.

This bill seeks to create a specific private right of action against any person who aids the person or entity to commit the act of terrorism or who coerces, induces, or solicits the person or entity directly committing the act of terrorism. For these purposes, a person or entity is deemed to have “aided a person or entity to commit an act of terrorism” if they raise, solicit, collect, or provide material support or resources “with the intent that it will be used, in whole or in part, to plan, prepare, carry out, or aid in any act of terrorism, hindering the prosecution of terrorism, or the concealment of, or escape from, an act of terrorism.” “Material support or resources” includes currency or other financial assistance or financial services, as well as instruments of value, lodging, training, safehouses, false documentation or identification, communication equipment, computer equipment, software, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except the provision of medical attention by a licensed health care provider or religious materials.

Insofar as an element of an “act of terrorism” under this bill involves the “intent” of the person or entity, in the commission of any of the bill’s qualifying acts of terrorism, to intimidate or coerce the civilian population, influence the policy of a unit of government by intimidation or coercion, or affect the conduct of a unit of government by intimidation or coercion, the bill raises a question as to what types of factors or facts are relevant in determining intent, particularly when considering indirect acts of third parties of entities. Likewise, the bill raises a question as to what constitutes “intent” that the material support or resources will be used to “plan, prepare, carry out, or aid in any act of terrorism, hindering the prosecution of terrorism, or the concealment of, or escape from an act of terrorism.” At what point could the act of providing legal aid funds to a defendant after the act, transmitting messages on social media cites before the act, or providing financial support from a religious institution to a recent immigrant from the Middle East before the act, for example, be interpreted as aiding the commission of an act of terrorism? Ultimately, while the intent of the person directly committing the act of terrorism may be easily discerned if the person made closely connected statements before or during the commission of the act, the intent of a person who “aided” in the commission of the act is likely much more difficult to determine when evaluating the possible intent behind indirect acts.

5. Potential secondary liability of commercial banks providing financial services

As noted in the comments above, the federal ATA provides for civil remedies for any U.S. national who is injured in his or her person, property, or business by reason of an act of international terrorism. Similar to this bill, the ATA also applies to acts of those who provide material support to terrorists, provide material support or resources to designated foreign terrorist organizations, or finance terrorism. Specifically, any person who provides material support or resources, knowing or intending that they are to be used either in preparation for, or in carrying out, or in concealing an escape from the commission of, a violation of specified laws, including provisions of the ATA (or any person who attempts or conspires to do such an act), is subject to fines and imprisonment under the ATA. Notably, the ATA similarly defines “material support or resources” to include any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, as well as any lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, and transportation, except medicine or religious materials.

Given the similarities between provisions of this bill and the ATA, it is worth noting that ATA civil litigation has reportedly increased dramatically following September 11, 2001, with banks emerging as an increasingly popular target, presumably due in part to their deep pockets. “Courts are divided concerning the scope of liability under the statute, specifically over whether the ATA authorizes a cause of action premised on secondary liability. Under a secondary liability theory, a plaintiff could argue that a bank, through providing financial services to a terrorist client, aided and abetted an act of international terrorism.” (See Bitterly, Can Banks Be Liable for Aiding and Abetting Terrorism?: A Closer Look into the Split on Secondary Liability Under the Antiterrorism Act (2015) 33 Fordham L. Rev. 3389, 3389.).

While courts dismissed the earliest ATA lawsuits against banks because the bank defendants were not involved in “violent acts or acts dangerous to human life” by engaging in commercial banking activity, there is concern over how courts have increasingly interpreted the ATA’s scope much more broadly. (Saperstein and Sant, New York Law Journal, The Anti-Terrorism Act: Bad Acts Make Bad Law (Sept. 5, 2012) <http://files.dorsey.com/files/upload/NYLJ_saperstein_sant_anti_terrorism.pdf> [as of Apr. 23, 2016].) Specifically, following an earlier court’s analogy (known as the Boim III analogy) that giving a donation is akin to giving a loaded gun to a child, in 2011, a U.S. District Court in Florida concluded that although transferring funds to a terrorist organization “may not be violent, it is clearly dangerous to human life.” (Id., citing Stansell v. BGP, Inc. (2011) 2011 U.S. Dist. LEXIS 39808; see also Boim v. Holy Land Found. for Relief & Dev. (2008) 549 F.3d 685 (Boim III).) In the context of banks providing regular financial services, however, the more apt analogy would be that a bank transferring money to an organization that ends up using the money in an evil way is akin to passing along money to a person who unexpectedly buys a gun and shoots people. “Or, to flip the analogy, forcing a bank to pay damages for terrorist acts simply because terrorists received fund transfers through the bank is akin to forcing a bank to pay damages for shooting just because the killer bought the gun with money withdrawn from the bank.” (Id.) Nonetheless, courts have “expanded [such reasoning] beyond the realm of conscious payments or donations to include even the routine processing of wire transfers by third-party financial institutions. (Id. citing Goldberg v. UBS, 660 F.Supp.2d 410, 427 (E.D.N.Y. 2009),

Given its similarities to the ATA, this bill could feasibly be interpreted to impose broad liability on various entities, even in the absence of any actual intent or reasonable knowledge on the part of the entity as to how the funds will be used.

6. Statute of limitations for third parties or entities is uncertain

Under this bill, a claim must be brought within five years of the injury caused by the act of terrorism. Practically speaking, however, a third person or entity alleged to have secondary liability could be sued years, if not decades, after they committed an act alleged to have aided, coerced, induced, or solicited the terrorist act. For example, a wire transfer or purchase of a weapon could take place 10 years in advance of the act of terrorism for wholly unrelated reasons. Yet under this bill, the person could be sued up to 15 years later because the five year clock does not start until the date of the injury that was caused by the act of terrorism. This could greatly undermine the party’s ability to provide an adequate defense.

Support: El Dorado District Attorneys Association; Huntington Park Police Department; Yreka Police Department

Opposition: None Known

HISTORY

Source: Author

Related Pending Legislation: None Known

Prior Legislation: None Known

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