SB 718: 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. Existing law subjects certain property to forfeiture, such as controlled substances and equipment used to process controlled substances. Existing law allows peace officers, under specified circumstances, to seize property that is subject to forfeiture. Existing law authorizes specified public agencies to bring an action to recover expenses of seizing, eradicating, destroying, or taking remedial action with respect to any controlled substance. Existing law requires seized property or the proceeds from the sale of that property to be distributed among specified entities.

This bill would subject property used in the course of, intended for use in the course of, derived from, or realized through an act of terrorism, by a person or entity who committed, who aided a person or entity to commit, or who coerced, induced, or solicited a person or entity to commit an act of terrorism to civil forfeiture. The bill would specify the circumstances under which property subject to civil forfeiture may be seized by a law enforcement officer. The bill would authorize a person who is injured by an act of terrorism, and a law enforcement agency or other governmental agency that participated in the investigation, mitigation, seizure, or forfeiture process for an act of terrorism, to file a claim to recover damages and costs, and prioritize allocation of the proceeds of the civil forfeiture and disposition, as specified.

This bill would also 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.

This bill would permit a civil forfeiture proceeding or civil action under this section to be commenced at any time within 5 years after the act of terrorism occurred, and would toll the time for commencement of a civil action during the pendency of a criminal prosecution.

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 718 (Author:Anderson)

Version: February 17, 2017

Hearing Date: April 25, 2017

Fiscal: Yes

Urgency: No

Consultant: TSG

SUBJECT

Terrorism: civil action

DESCRIPTION

This bill would subject property used for committing or aiding an act of terrorism, as defined, to civil forfeiture and create a new cause of action through which the victim of an act of terrorism could recover damages from anyone who aided or committed an act of terrorism. Under this bill, an “act of terrorism” would include, among others things, killing a human being, arson, felony vandalism, robbery, rape, torture, looting, and threatening others with bodily harm, if, in committing the act, 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.

BACKGROUND

Private First Class William “Andy” Long was shot and killed in front of a Little Rock, Arkansas military recruiting office by a self-proclaimed terrorist in 2009. The incident inspired some, frustrated by “the federal government’s reluctance to call acts of terrorism what they are and refusal to prosecute those who commit such acts under federal terrorism statutes,” to push for a new “civil legal cause of action, empowering victims of terrorism to seek damages from individuals and organizations that provide material support to those who commit acts of terrorism.”^[1] Legislation that creates this new cause of action is sometimes referred to as “Andy’s law.” This bill is an example.

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.

This bill would permit law enforcement agencies engaged in the investigation of an act of terrorism to seize any assets used in or in any way related to furthering the act of terrorism. Upon conviction, the proceeds from the seizure of those assets would be distributed among the investigating agencies in accordance with a specified formula.

COMMENT

1. Stated need for the bill

According to the author:

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 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. Similarly, there is no avenue in California for law enforcement to seize the assets of those who support radical jihadists and whom after the deed is done, are free go on to support with money, motivation, and training their next recruit.

This bill would subject property used in the course of, intended for use in the course of, derived from, or realized through an act of terrorism, by a person or entity who committed, who aided a person or entity to commit, or who coerced, induced, or solicited a person or entity to commit an act of terrorism to civil forfeiture.

The bill would specify the circumstances under which property subject to civil forfeiture may be seized by a law enforcement officer. The bill would authorize a person who is injured by an act of terrorism, and a law enforcement agency or other governmental agency that participated in the investigation, mitigation, seizure, or forfeiture process for an act of terrorism, to file a claim to recover damages and costs, and prioritize allocation of the proceeds of the civil forfeiture and disposition, as specified.

This bill would also 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.

It is the hope of this legislation to allow victims and their families to receive compensation for the crimes committed against them. Also, that those who live in the shadows of these acts of cowardice are exposed and stopped from repeating their support for terrorism over and over again.

2. Implications of the civil forfeiture provisions

In every respect but one, this bill is nearly identical to SB 1057 (Anderson) introduced in 2016. This Committee’s analysis of that bill raised multiple concerns regarding that bill’s duplication of existing civil actions, its potential to create secondary liability for financial institutions, and its risk of chilling free expression and association in the context of anti-government protest. Those concerns are repeated in the comments below for convenient reference.

Unlike its predecessor, this bill contains additional provisions for the seizure and forfeiture of assets used in, or that in any way furthered, a terrorist act as defined by the bill. Proponents of civil asset forfeiture argue that it helps deter criminal activity, it takes away the means by which further criminal acts can be accomplished, and it shifts at least some of the cost of law enforcement onto those who are breaking the law.^[2] Critics of civil asset forfeiture counter that the due process protections associated with it are insufficient to prevent government overreach. Moreover, critics of civil asset forfeiture point out that civil asset forfeiture introduces a strong financial motive that may distort law enforcement priorities and decision-making, incentivizing the very government overreach that the weak due process protections make easy.^[3]

Because of well documented abuse of civil asset forfeiture, particularly in the context of drug enforcement, there has been bipartisan movement toward limiting or eliminating the use of civil asset forfeiture nationally. In 2000, the U.S. Congress passed The Civil Asset Forfeiture Reform Act (H.R. 1658 (Hyde) Public Law No: 106-185), and legislation proposing additional changes has been introduced with bipartisan co-sponsorship in each of the last two sessions. (S.642 (Paul) 115th Congress (2017-2018); S.255 (Paul) 114th Congress (2015-2016).) Just last year, California enacted civil asset forfeiture reform with bipartisan support and ideologically diverse co-authors. (SB 443 (Mitchell) Ch. 831, Stats. of 2016.)

As civil asset forfeiture provisions go, the due process provisions contained in this bill are relatively strong. The bill generally requires a court order for seizure of assets and it mandates a conviction before the proceeds from the seized assets can be distributed. It does not, however, alter one major concern with civil asset forfeiture, which is that law enforcement itself stands to gain financially from investigating and prosecuting the alleged act.

The inclusion of civil asset forfeiture thus arguably aggravates the concerns already attendant to this bill. As discussed below, this bill’s definitions of terrorism and “aiding” terrorism are potentially broad enough to apply to an enormous number of people and situations. (See Comment 5, below.) This is troubling under ordinary circumstances. Where law enforcement stands to profit, or at least generate significant revenue, from civil asset forfeitures associated with terrorism cases under this bill, law enforcement may be tempted to push the scope of the terrorism and “aiding terrorism” provisions of this bill as far as legally possible. In other words, the addition of civil asset forfeiture to the bill further exacerbates the concerns already raised about the risk of overreach and intrusion into legitimate protest activity under this bill.

3. Similar statutes in other states

The author reports that the following “Andy’s Laws” have been enacted or are pending:

H.R. 3815 114th Congress (2015-2016)

State laws:

Arkansas (SB 630, S3/28/13)

Louisiana (HB 99, Act No. 116 2012)

Tennessee (SB 180, 2015)

North Carolina (HB 371, S.L. 2015-215)

Kansas (HB 2463, 2014)

4. Duplication of existing grounds for civil lawsuits

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 impose state liability on 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. Such secondary liability might not otherwise exist 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.

5. Potential chilling effects on freedom of expression and association

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.

6. 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 sites 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.

7. 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.

8. 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: California Fire Chiefs Association; Crime Victims United of California; Fire Districts Association of California; Peace Officers Research Association of California

Opposition: None known

HISTORY

Source: Author

Related Pending Legislation: None known

Prior Legislation:

SB 1057 (Anderson, 2016) was nearly identical to subdivisions (j) through (p) of this bill. It would have created a civil action for injuries sustained as a result of terrorism, as defined. Unlike this bill, SB 1057 would not have provided a mechanism for civil forfeiture of property related to an act of terrorism. SB 1057 died in the Senate Committee on Judiciary.

SB 443 (Mitchell, Chapter 831, Statutes of 2016) requires a criminal conviction before California law enforcement may share in the revenue generated from a civil asset forfeiture produced by a joint state and federal task force.

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1. Holton, Andy’s Law Sponsor in Tennessee Calls for Action in Wake of Jihadi Attack (July 22, 2015) The Counter Jihad Report <https://counterjihadreport.com/tag/andys-law/> (as of Apr. 4, 2017). ↑

2. See What Is Asset Forfeiture, Federal Bureau of Investigation <https://www.fbi.gov/investigate/white-collar-crime/asset-forfeiture> (as of Apr. 4, 2017). ↑

3. See Policing For Profit, 2nd Edition, Institute for Justice, pp. 11-13 <http://ij.org/wp-content/uploads/2015/11/policing-for-profit-2nd-edition.pdf> (as of Apr. 4, 2017). ↑