2nd Circuit Vacates Verdict in ATA Case against Arab Bank Due to Improper Jury Instructions

The U.S. Court of Appeals for the Second Circuit Friday reversed a 2014 verdict that found the Jordan-based Arab Bank liable under the Anti-Terrorism Act for three separate Hamas-associated attacks in Israel between 2002 and 2003.  The court, in Linde v. Arab Bank, PLC, found that the jury instructions had incorrectly allowed for a guilty verdict simply because the Arab Bank handled financial transactions for Hamas and its supporters.   At the trial, the Arab Bank was found to have been used by Hamas to send payments to families of suicide bombers.

In reversing the verdict, the Second Circuit panel found that “the provision of material support to a terrorist organization does not invariably equate to an act of international terrorism,” and that in order to be found liable under the ATA, the person or entity providing the support must also be found to be involved in an act that constitutes international terrorism.

Although the Second Circuit remanded the case for a retrial, the parties had reached a settlement agreement before the decision was handed down.  According to the settlement agreement, the amount of the payout turned on whether the Second Circuit affirmed or reversed the verdict.  Thus, even with the reversal, the 597 plaintiffs are still set to receive payment from the Arab Bank.  While the specific terms of the agreement remain secret, media accounts relate that the Arab Bank has set aside at least $1 billion to cover its obligations under the settlement.

 

Serving Process at the Embassy in FSIA Cases…..Not So Fast, Says the Fourth Circuit

Under the Foreign Sovereign Immunities Act (FSIA),  American citizens are permitted to sue the limited number of foreign states that the U.S. State Department has designated as “State Sponsors of Terrorism” in a United States court if the plaintiff’s injury was caused by the state’s support of a terrorist organization.

But how do you get personal jurisdiction over the foreign state?

The Fourth Circuit, in Kumar v. Sudan, recently held that the FSIA does not permit service of process by mail to a foreign government’s embassy in the United States and consequently the Fourth Circuit vacated a $34 million default judgment entered against Sudan for damages related to Sudan’s alleged provision of material support to the al-Qaeda operatives who carried out the bombing of the U.S.S. Cole in 2000.

The FSIA provides that such service may be effectuated by:

“Sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned.”

In Kumar, plaintiffs attempted to serve the government of Sudan under by mailing the relevant materials to the head of the Sudanese ministry of foreign affairs at the address of the Sudanese embassy in Washington DC. The Fourth Circuit held that this method of service did not comply with the requirements of the statute.

Although the court acknowledged that the statute “does not specify a geographic location for the service of process,” it reasoned that service at the embassy was likely impermissible under the plain language statute because the head of a foreign government’s ministry of foreign affairs “is rarely – if ever – present” at their embassy.

The court found that the FSIA’s legislative history — namely a congressional report that noted that the statute was designed to eliminate service “to” or “on” an embassy in order to avoid inconsistencies with the United States’ obligation to ensure the “inviolability” of foreign embassies under the Vienna Convention — supported the conclusion that service by mail to a foreign embassy was insufficient to obtain personal jurisdiction in an FSIA action.

An amicus brief from the U.S. government took the position that service at an embassy does not satisfy the FSIA’s service requirements, and that such service is, in fact, inconsistent with the Vienna Convention.  And,the government’s brief noted that the State Department routinely takes the position that personal jurisdiction is lacking when process is served on it through US embassies overseas.

Notably, a petition for certiorari on whether the FSIA permits service on a foreign state’s ministry of foreign affairs “via” or in “care of” the foreign state’s diplomatic mission in the United States is currently pending before the U.S. Supreme Court in Sudan v. Harrison.  The Kumar Court’s decision is in line with decisions out of the U.S. Courts of Appeals for the District of Columbia, 5th and 7th Circuits, but in direct conflict with the 2nd Circuit, which held that mailing process to the minister of foreign affairs via the relevant embassy in the United States was permissible because it “could reasonably be expected to result in delivery to the intended person.”

Dismissal of Anti-Terrorism Act Lawsuit against Twitter is Affirmed by the Ninth Circuit … but not on Section 230 Immunity Grounds

On January 31, 2018, the Ninth Circuit Court of Appeals in Fields v. Twitter, Inc. ruled unanimously to uphold a lower court’s dismissal of an Anti-Terrorism Act lawsuit that had been brought against Twitter after two American contractors were killed in Jordan in 2015 in an ISIS-related attack.  The plaintiffs in the case — the families of the victims — alleged that Twitter was responsible for the deaths because it had provided “material support” to the Islamic State by “knowingly and recklessly provid[ing] ISIS with accounts on its social network” and that “[t]hrough this provision of material support, Twitter enabled ISIS to acquire the resources needed to carry out numerous terrorist attacks.”  Under federal law, “material support”  is defined statutorily to include, among other things, any “service” and “communications equipment.” 18 U.S.C. §§ 2339A(b), 2339B(g)(4).

Specifically, the plaintiffs argued that ISIS used Twitter’s Direct Messaging feature to communicate with potential recruits and “for fundraising and operational purposes.”  Also, Twitter’s platform allowed ISIS to recruit publicly, by posting “instructional guidelines and promotional videos, referred to as ‘mujatweets.’”  According to the plaintiffs, within the year preceding August 2016, Twitter allowed ISIS to attract “more than 30,000 foreign recruits,” and that ISIS used Twitter to fundraise and to “spread propaganda and incite fear by posting graphic photos and videos of its terrorist feats.”

The lower court dismissed the action on the basis that Section 230 of the Communications Decency Act provides immunity from civil liability to operators of internet sites that host user-generated content.  Although the plaintiffs had contended that Twitter “materially supported” ISIS by permitting ISIS members to sign up for Twitter accounts — conduct that had nothing to do with the content that ISIS members published on the site —  the lower court rejected this argument, stating:

“[P]laintiffs attempt to plead around the CDA by asserting that Twitter provided ISIS with material support by allowing ISIS members to sign up for accounts, not by allowing them to publish content. But no amount of careful pleading can change the fact that, in substance, plaintiffs aim to hold Twitter liable as a publisher or speaker of ISIS’s hateful rhetoric, and that such liability is barred by the CDA.”

The Ninth Circuit affirmed the dismissal of the case, but did so without reaching the question of whether Section 230 protects Twitter from liability.  Instead, the Ninth Circuit found that the plaintiffs had not pleaded that Twitter’s provision of communication equipment to ISIS, in the form of Twitter accounts and direct messaging services, had any direct relationship with the injuries that the plaintiffs suffered.  The court held that the plaintiff’s complaint

“At most … establishe[d] that Twitter’s alleged provision of material support to ISIS facilitated the organization’s growth and ability to plan and execute terrorist acts. But [it did] not articulate any connection between Twitter’s provision of this aid and Plaintiffs–Appellants’ injuries.”

Thus, outside of the  it still remains an open question whether Section 230 of the the CDA protects operators of internet sites that host user-generated content from liability for materially supporting terrorist activity by providing terrorist organizations with a social media platform through which they can recruit members, raise money, and spread their hateful messages.

The Fields plaintiffs have not indicated whether they will petition the Ninth Circuit for a rehearing or whether they will seek review by the Supreme Court.

Ameer Benno Presents Lawline’s Second Annual SCOTUS Preview!

Last week, Erica Dubno and I presented Lawline’s Second Annual SCOTUS Preview.  We addressed the following critical cases that are to be decided by the Supreme Court of the United States in its 2018 Term:

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission
  • Gill v. Whitford
  • Class v. U.S.
  • Jesner v. Arab Bank
  • McCoy v. Louisiana
  • Christie v. NCAA
  • Carpenter v. U.S.
  • Jennings v. Rodriguez

If you missed the live webcast, you can watch the two-hour presentation On Demand by clicking here!

NINTH CIRCUIT RULES THAT INNOCENT BEHAVIOR IS SUSPICIOUS

In a recent court decision, the United States Court of Appeals for the Ninth Circuit ruled that a combination of non-suspicious driving characteristics can give rise to the suspicion of criminal activity sufficient to justify pulling over the motorist.

A border patrol agent in a marked border patrol vehicle observed motorist Rufino Ignacio Valdes-Vega driving a red Ford F-150 truck driving north on Interstate 15, about 70 miles north of the Mexican border.  Valdes-Vega was observed changing lanes without signalling and driving about ten miles per hour faster than other traffic that day.  When the border patrol agent pulled next to the red truck, which was clean and had Baja California license plates, Valdes-Vega, who was alone in the vehicle, kept his eyes on the road, something that the border patrol agent found suspicious.

The border patrol put on his lights and Valdes-Vega immediately pulled over.  The border patrol agent had not pulled Valdes-Vega over for any traffic violations (indeed, as Valdes-Vega’s attorney later pointed out to the court, border patrol agents do not enforce traffic laws), but because he wanted to search the truck.  And when he did (Valdes-Vega consented to the search), he found cocaine.  After being arrested and indicted, Valdes-Vega moved to suppress the drugs that were recovered from his vehicle on the basis that the vehicle stop violated his Fourth Amendment right to be free from unreasonable seizures, and therefore was illegal.  The trial court denied Valdes-Vega’s motion, and he entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress the cocaine.

After a three-judge panel of the Ninth Circuit reversed the trial court and suppressed the drugs, the Ninth Circuit decided to hear the case en banc.

A majority of the en banc court held that the vehicle stop was proper and affirmed the trial court’s decision denying suppression.  The majority explained that ”[t]he fact that Valdes-Vega’s truck had Mexican license plates made the possibility that it had recently crossed the border significantly more likely.”  The court majority further found the fact that Valdes-Vega was driving a truck to be “significant” because “trucks are suitable for carrying large amounts of contraband and make it difficult for agents to see into the vehicle.”  According to the majority, these otherwise innocuous factors taken together with the slightly fast driving gave the border patrol “an objective and particularized suspicion that Valdes-Vega was ‘engaged in wrongdoing’” as a smuggler.  The majority declared that

“Valdes-Vega urges us to resist this conclusion because he contends that innocuous factors remain so even when added together.  Zero plus zero equals zero, his argument runs. But … we decline to second-guess the agents’ decision to stop the truck for investigation. Even innocent, noncriminal acts can foster reasonable suspicion in the total context …. A series of innocent acts may be enough for reasonable suspicion justifying an investigatory stop, even though the circumstances amount to far less than probable cause.”

In a tersely worded three-judge dissent, Judge Harry Pregerson wrote that

“Border patrol agents stopped Valdes-Vega because of his Hispanic appearance

*    *    *

“Driving a clean Ford F-150 pickup is not suspicious. Driving with Baja plates is not suspicious. Driving 70 miles north of the U.S.-Mexico border is not suspicious. Driving with eyes kept on the road ahead is not suspicious. Driving faster than the flow of traffic and not signaling before lane changes on a major, busy California interstate highway is not suspicious. Driving while having Hispanic appearance is not suspicious.

“Driving without signaling lane changes and faster than the flow of traffic on a major, busy California interstate highway — not uncommon in California — is referred to by the majority as ‘perhaps one of the most important factors in the total circumstances here.’ Such driving, plus defendant’s Hispanic appearance, plus his eyes on the road, plus his driving a clean Ford F-150, plus the Baja plates, did not create a reasonable suspicion that criminal activity was afoot.”

So the upshot here seems to be that being too non-suspicious can, in itself, give the cops an “objective and particularized suspicion” of wrongdoing sufficient to justify stopping you.  But if you act at all suspicious, game’s over too.  Under this rubric, when, pray tell, will a government seizure ever be unreasonable?

Looks like the erosion of the Fourth Amendment is alive and well in the Ninth Circuit.

 

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