Can there be an accidental extrajudicial killing? Understanding standards of intent in the Torture Victim Protection Act

The Eleventh Circuit sits in the Elbert P. Tuttle U.S. Courthouse in Atlanta, Georgia | By Eoghanacht - Own work, Public Domain, https://commons.wikimedia.org/w/index.php?curid=3122239

By Lindsay Bailey[1] 

I. Introduction

In most cases of extrajudicial killing, the intent is clear.  A trigger is pulled or a bomb is detonated, and no one questions if the killer meant to shoot the gun and planned for the consequences of their actions. While the Torture Victim Protection Act (TVPA) requires that a killing be deliberated to qualify as extrajudicial,[2] few courts have ruled on what scienter[3] is required by the phrase deliberated.

In Mamani et al v. Sánchez de Lozada and Sánchez Berzaín (“Mamani”), the Eleventh Circuit Court of Appeals held that Defendants would not be liable for extrajudicial killings if the killings resulted from “accidental or negligent shooting” by forces under their command.[4] This ruling unjustifiably narrowed the definition of extrajudicial killing by raising the burden of proof for the Plaintiffs in the case and setting a precedent that lowers the standard of care for military and police everywhere. While Plaintiffs argued that the killings were not accidental, even if what Defendants argued was hypothetically true—the deaths were a result of accidental or negligent shootings—the TVPA’s definition of deliberated could, and should, encompass this type of extrajudicial killing.

An accidental killing, as part of a larger planned military operation, should be considered “deliberated” under the TVPA. The Court should rely on the text of the statute and the intent of the drafters to interpret deliberated in this type of case.  The term deliberated is ambiguous because it could refer to a variety of standards of scienter.  The legislative history does not clarify this ambiguity, but it is clear that the drafter’s intent was to follow customary international law’s definition of extrajudicial killing. In light of this intent, courts should interpret deliberated to comply with international law.  International law imposes liability for extrajudicial killings that resulted from negligent actions by the plaintiff.  A negligence standard serves policy goals, including encouraging governments to take steps to prevent extrajudicial killing and placing the burden of preventing extrajudicial killing on the actor who is both the least cost avoider and the most capable of taking preventative measures.

II. Defendants in Mamani argued that killings of protestors committed by security forces were accidental.

Mamani is an ongoing civil case for punitive and compensatory damages for extrajudicial killing under the TVPA, among other claims.[5] The facts of the case center around 2003 protests in Bolivia known as the Gas War.  The defendants are the former President and Defense Minister of Bolivia. Defendants implemented a controversial plan to export gas through Chile.  Large demonstrations erupted, protesting this plan.  The military killed 58 civilians while suppressing these protests.[6]  Relatives of the Plaintiffs were among those killed, including a pregnant woman and an eight year old girl who were sheltering their homes.

Plaintiffs alleged that the Defendants “planned to send the military to shoot to kill and injure people without regard to whether they were engaged in any conduct that would justify the lawful use of lethal force.”[7]  Defendants denied this allegation. Plaintiffs also alleged that their relatives’ deaths were a result of the military intentionally aiming at their relatives. Defendants also denied this allegation and claimed that the Plaintiffs’ relatives’ deaths were a result of “accidental or negligent shooting.”[8]

III. Prior to Mamani there was no precedent for what scienter standard would fulfill the deliberated requirement when killings are committed by security forces when suppressing a protest.

Before Mamani, the TVPA’s requirement that extrajudicial killings be deliberated has not been the subject of lengthy legal opinions.[9]  The only TVPA cases in American courts that based their claim on extrajudicial killings were based on extremist attacks,[10] targeted assassinations or summary executions,[11] shooting down a plane,[12] murder after torture,[13] or the use of pesticides or Agent Orange.[14]  It would be challenging to argue that these killings were negligent or accidental due to the nature of these incidents and Defendants have only advanced such an argument in the pesticide cases.[15]  The Defendants in the pesticide cases would have had a fundamentally different scienter than the Defendants in Mamani because they only intended to “kill or harm plants.”[16]  Conversely, Defendants in Mamani do not deny that security forces intended to kill or harm some people—their argument is that they did not intend to kill or harm the victims.  Shooting a gun is a very different act from spraying pesticide. Mamani is thus a case of first impression, for adjudicating a claim against state security forces who killed citizens while suppressing a protest and thus for determining what scienter is required for a shooting to qualify as extrajudicial.

In Mamani, the Eleventh Circuit Court of Appeals held that defendants could only be liable for extrajudicial killings that were “undertaken with studied consideration and purpose” which does not include killings that were a result of “accidental or negligent shooting.”[17]  In making this determination, the court did not cite any other case that defined deliberated in the TVPA context.  Even if the court had cited other cases, the other TVPA cases that discuss deliberation address a completely different class of extrajudicial killing and their standards were not developed for application against state security forces suppressing a protest.  The court had an opportunity to set a precedent, and they set the wrong one. The court should reconsider their interpretation of deliberated, based on the ambiguity of the word deliberated in the text and the legislative history, the clear intent to comply with customary international law’s definition of extrajudicial killing, and the policy implications of a strict standard of intent.

IV. The textual meaning of deliberated is ambiguous because there are a variety of levels of scienter that are compatible with deliberation.

A strict textual reading of the phrase deliberated does not yield a specific legal definition.  Black’s Law Dictionary defines deliberated as “[c]arried on coolly and steadily, especially according to a preconceived design.”[18] The Eleventh Circuit explained that an action is deliberate if it is “undertaken with studied consideration and purpose.”[19]  If deliberated is interpreted to essentially mean planned, the text of the statute is ambiguous as to what aspects of the actus reus of killing the scienter of deliberated applies to. Does the defendant need to deliberately pull the trigger or deliberately aim at a specific person?

While it may be tempting to assume that deliberated should take on the same meaning as it does in criminal statutes for first degree murder,[20]  the TVPA creates a civil cause of action.  Thus, deliberated should be interpreted to be consistent with one of the scienter requirements under tort law. There is an ongoing debate about the appropriate level of scienter for intentional torts, with courts divided between single intent and dual intent.[21]  In negligence and strict liability cases, tort law also uses a lower level of scienter.  Deliberated could be interpreted to be consistent with any of these definitions of scienter.

Dual intent would require the defendant to intend to commit the act that killed or injured the plaintiffs and “desires to cause consequences of his act, or . . . believes that the consequences are substantially certain to result from it.”[22] This standard would only exclude a negligent shooting if the defendant would have thought killing someone was not “substantially certain” to result.  For instance, the Restatement of Torts uses the illustration where “A throws a bomb into B’s office for the purpose of killing B. A knows that C, B’s stenographer, is in the office. A has no desire to injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort.”[23] Under this standard, security forces would be liable for the “accidental” shootings in Mamani if they knew that shooting a gun was substantially certain to cause someone’s death. Furthermore, this standard would not exclude a shooting where the defendant shot with the intent of wounding, rather than killing, the victim.[24]  Deliberated could be interpreted consistently with this standard- the defendant planned the act and planned the harm, or disregarded that harm was substantially certain to result.  The defendant would not need to have deliberated for a lengthy period of time- only a second to plan to target and shoot an individual would be sufficient to meet this standard.

Combined with the doctrine of transferred intent, dual intent would also include a negligent or accidental shooting where the defendant intended to kill or injure a different individual.  If the defendant intends to commit an intentional tort against a third party and harmed or killed the victims, the defendant is liable for an intentional tort.[25]  This would include an accidental or negligent shooting, if the plaintiffs can demonstrate that the defendants had intended to shoot someone else, and intended to either kill or injure them.  Deliberated is also consistent with transferred intent- while the defendant did not plan to shoot and kill this specific victim, they did plan to shoot someone.

Many courts have rejected the dual intent definition of scienter, and instead use single intent.  Single intent would only require the defendant to intend to make contact with the victim.[26]  They would not have to intend any harm.  This would exclude an accidental or negligent shootings where the defendant did not intend to make contact with the victim.  Under the doctrine of transferred intent, this would include cases where the defendant intentionally shot a gun to make contact with a third party and accidentally hit the wrong target.  This would include an accidental shooting where the security forces intended to make contact with one person, and accidentally made contact with the victims.  This definition of scienter is also consistent with deliberated, because the defendant planned to make contact with someone.

Deliberated could also be consistent with a negligence standard. An actor is negligent when their conduct breaches the standard of care that a reasonable person would take in that situation to protect others from a risk of harm.[27]  This standard of care is defined based on what a “reasonable [person] under like circumstances” would do.[28]  The difference between negligence and dual intent, is that in dual intent the harm must be “almost certain” to result from the action, while in negligence the actor is disregarding a lower level of risk of harm that a reasonable person would have prevented.[29] This standard could be consistent with deliberated in the sense that the defendant would have planned their action or inaction, even if they did not plan for that action to breach the duty of care and harm someone. For instance, if the military deliberated about a plan to suppress a civil uprising and accidentally killed protesters because the plan did not adhere to the standard of care that a reasonable military plan would, the plan itself was still deliberated.  If a soldier shot accidentally a civilian, and was not conforming to the standard that a reasonable soldier would follow under a similar situation, they still deliberated about pulling the trigger.

Finally, deliberated could be consistent with strict liability.  Under tort law, individuals can be held strictly liable for “abnormally dangerous” activities “if the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and the activity is not one of common usage.”[30]  This standard is different than negligence because even if the defendant exercised all reasonable care, they would still be liable for the deaths they cause.[31]  This scienter has been limited to a short list of activities, and use of firearms is not one of them.[32]  However, suppressing a civil uprising is far less common than using firearms.[33]  Even the most careful government exercising reasonable care could foresee that they would unintentionally kill innocent people. Furthermore, deliberated could be consistent with strict liability, because defendants planned to and deliberately did engage in an abnormally dangerous activity.

Deliberated could apply to any tort scienter standard, including dual intent, single intent, strict liability, and negligence.  Furthermore, any of these standards could include some liability for an “accidental or negligent shooting (including mistakenly identifying a target as a person who did pose a threat to others)[.]”[34] Dual intent would include an accidental shooting where the shooter was aware that they were substantially certain to hit someone or intended to hit a third party. Single intent would include an accidental shooting where the shooter intended to make contact with a third party.  Negligence would include an accidental shooting where the shooter did not take reasonable precautions against hitting the victim.  Strict liability would include all shootings during the suppression of a civil uprising. Without further guidance in the statute, a strict textual reading does not answer the question of what scienter is required for a successful claim of extrajudicial killing or whether accidental or negligent shootings have sufficient scienter to qualify as extrajudicial.

V. The legislative history does not demonstrate that the drafters contemplated that deliberated would necessarily require a standard of intent higher than negligence.

The legislative history of the TVPA demonstrates that the drafters did not necessarily intend for the deliberated standard to require any scienter beyond planning some kind of action and deviating from a reasonableness standard with respect to the assessment of whether the killing was extrajudicial.  The legislative history only mentions deliberated once.  It states that “[t]he inclusion of the word deliberated is sufficient also to [ex]clude killings that lack the requisite extrajudicial intent, such as those caused by a police officer’s authorized use of deadly force.”[35]  The drafters did not clarify what they understood to be “the requisite extrajudicial intent” and what definition of deliberated would be “sufficient to [ex]clude killings that lack the requisite extrajudicial intent.”  The only clarification is the drafters’ example of a police officer’s authorized use of deadly force.

Requisite extrajudicial intent could be a general question about the intent to cause death. The requirement could be an intent to kill, the intent to pull the trigger, the intent to willfully disregard the risk of death, or the intent to undertake an action that a reasonable person would know created a significant risk of death. The report does not indicate which standard of intent to use here.  The example provided by the drafters, killings resulting from a police officer’s authorized use of force, is not illustrative because a police officer could be held liable for wrongful death based on an intent to disregard the risk of causing death, a deliberate and malicious plan to intentionally cause death, or intentionally taking actions that a reasonable person would know would cause death.[36] Thus, this interpretation of requisite extrajudicial intent does not necessarily yield a specific scienter definition of deliberate.

Alternatively, the requisite extrajudicial intent could be a requirement about the intent that the killing take place without a trial and without any of the justifications for lethal force that are authorized under international law.  That is, the requirement could be that the defendant specifically intended to commit an extrajudicial killing.  At first, this seems narrower. The requisite extrajudicial intent of a police officer would be to intend to kill someone without authorization under international law- and a police officer who killed someone with authorization had no extrajudicial intent.  However, to intend to kill someone without authorization under international law or to intend to kill someone without authorization does not necessarily clarify intent.  Perhaps police officers do not have authorization to negligently kill someone, or a reckless killing would not be authorized under international law.  This leads to the question- what does it means for a police officer to intend to kill someone without ‘authorization’?

The drafters could not have intended for ‘authorization’ to mean sanction from a higher power. Police officers are liable for actions that they take while following orders, if those actions are illegal. The legislative history specifically notes that “low-level officials cannot escape liability by claiming that they were acting under orders of superiors.”[37]

Instead, the drafters probably intended for ‘authorization’ to be equated with legal under international law or domestic law. A killing without trial by security forces is only authorized under international law if the killer reasonably believed that the killing was necessary and reasonably believed they were targeting the right person.[38]  Similarly, a killing without trial by American police officers is only authorized under domestic law if the officer reasonably believed that lethal force was necessary and that they were using lethal force against “the right man”.[39]  A definition of deliberated that is sufficient to exclude killings where security forces reasonably believed that the killing was necessary would be a very low standard. The killer could only escape liability for an accidental or negligent killing if they reasonably believed that killing that person was necessary, or were trying to kill a different person whose death they reasonably believed was necessary and took reasonable precautions to prevent unnecessary deaths.  This interpretation of the legislative history demonstrates that the TVPA could include a construction of deliberated that only requires a deliberated plan to use lethal force and a failure to reasonably consider whether that lethal force would result in killing was necessary and proportional.

VI. The legislative history demonstrates that the drafters intended to comply with customary international law, so courts should interpret deliberated consistently with the negligence scienter for extrajudicial killing found in customary international law.

 

A)   The drafters intended for the TVPA to comply with customary international law.

The legislative history of the TVPA repeatedly states that “[t]he TVPA incorporates into U.S. law the definition of extrajudicial killing found in customary international law.”[40] This indicates that the drafters did not intend to ignore customary international law with their use of deliberated and that it is appropriate to incorporate the international law definition of intent for extrajudicial killing into domestic proceedings, especially in light of the ambiguity in the TVPA.  Furthermore, the 1988 House Report recognized that the TVPA was proposed “to carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights[.]”[41]  Insofar as carrying out obligations under the United Nations Charter requires respecting statements made by Special Rapporteurs, for the drafters’ purpose to fulfilled the TVPA would need to reflect the Special Rapporteur’s definition of extrajudicial killing.  For these reasons, it is appropriate to consider the customary international law definition of extrajudicial intent when faced with ambiguity in the TVPA.

B)   Customary international law uses a negligence standard for extrajudicial killing.

Customary international law has never established a requirement that shooters deliberately target specific individuals for extrajudicial killing and only requires a negligent act to find extrajudicial intent. Accepted sources of evidence of customary international law include treaties, international jurisprudence, international resolutions, actions by states reflecting the view that practices violate the law, and the writing of scholars.[42]

None of the international instruments establishing the obligation to refrain from violating the right to life mention an intent requirement.[43]  The most recent report of the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions stated that the scienter of an extrajudicial killing could be demonstrated through “criminal intent but also negligence through acts of omission or commission, that is, a situation where the State “knew of should have known” but failed to take actions that could have prevented deaths.”[44]  Other reports from the Special Rapporteur stated that extrajudicial killings may take place “in a shoot-out with government forces or police”[45] and include “incidents of indiscriminate killing of civilian non-combatants,”[46] such as “shooting at unarmed crowds without warning [.]”[47]  Under this standard, the allegedly accidental and negligent killings in Mamani would qualify as extrajudicial killings.

Regional human rights courts have also found liability for extrajudicial killing based on a negligence standard. In Gul v. Turkey, a police officer shot through a closed door multiple times. In finding the police officer guilty of extrajudicial killing, the European Court of Human Rights held that it did not need “to determine whether the police officers had formulated the intention of killing or acted with reckless disregard for the life of the person behind the door. [The court] not fulfil the functions of a criminal court as regards the allocation of degree of individual fault. It is satisfied that the police officers used a disproportionate degree of force in the circumstances[.]”[48] Similarly, in “Caracazo” v. Venezuela police and military personnel indiscriminately shot civilians while suppressing protests. Again, officers may never have formed the deliberate intention to shoot the civilians.  Rather, they deliberately formed an intention to shoot indiscriminately.  The American Court of Human Rights held that the police officers’ actions were extrajudicial killings.[49] In McCann v. the United  Kingdom, the European Court of Human Rights noted with disapproval that  “the jury focused on the actions of the soldiers as they opened fire as if it were considering their criminal culpability and not on matters such as the allegedly negligent and reckless planning of the operation.”[50] The ECHR then held that the use of deadly force may be justified “where it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.”[51]  The use of “an honest belief . . . for good reasons” implies that the ECHR uses a reasonableness standard when assessing liability for extrajudicial killing. International tribunals interpreting the laws of war have similarly found military officers responsible for indiscriminately killing civilians when civilians “were the subject of reckless fire into areas where civilians were known to have been.”[52]  Notably, this was in a trial for war crimes, which typically require high levels of intent. Thus, international tribunals have consistently held that the appropriate standard for intent in extrajudicial killing cases, even in criminal law cases where the standard of intent should be higher than a torts case.

Statements by the United States government and American authorities on international law have not interpreted the customary international law norms of extrajudicial killing to require a high level of intent.  The American Law Institute’s Restatement (Third) of the Foreign Relations Law states “[I]t is a violation of international law for a state to kill an individual other than as lawful punishment pursuant to conviction in accordance with due process of law, or as necessary under exigent circumstances.”[53]  Nowhere in this definition is there a scienter requirement.  In 2001 the US Bureau of Democracy, Human Rights and Labor included “killings committed by police or security forces that resulted in the unintended death of persons without due process of law (for example, mistargeted bombing or shelling or killing of bystanders)” as a type of arbitrary killing.[54]  This statement from an executive department explicitly includes unintended deaths as extrajudicial killings.

Many of the treaties, the laws of war, and some of the statements from the Special Rapporteur discussed above were already in force at the time the TVPA was passed.  This indicates that at that time of drafting the customary international law definition of extrajudicial intent was probably a negligence standard.  While some of these sources of customary international law were established after the statute was passed, the reference to customary international law should not encompass only customary international law as it existed at the time the bill was passed. When the drafters proposed the TVPA “to carry out the obligations of the United States,”[55] they did not cite “current obligations.” The drafters were probably aware of the possibility that future treaties may be signed.  The current and past scienter requirement for extrajudicial killing under international law is negligence, and would encompass an accidental shooting.  As discussed infra, implementing this negligence standard would also be consistent with the drafter’s intent to exclude killings “caused by a police officer’s authorized use of deadly force.” Thus, a negligence standard for intent is both consistent with international law standards and the drafters’ purpose.

VII. Compelling policy support using a negligence standard.

Regardless of the intent of the drafters or the meaning of deliberated, there are extensive policy reasons for defining using a negligence standard for extrajudicial intent.  A negligence standard will deter extrajudicial killing and create incentives for governments to take reasonable precautions to avoid negligently killing their citizens.  It distributes the cost of taking precautions against extrajudicial killing to the government, who is the least cost avoider and the most capable of taking on the cost of avoiding killing. The arguments against negligence- keeping the floodgates of litigation closed and preserving the special condemnation for intentional crimes- are not compelling.  Ultimately, a negligence standard is more likely to reduce the incidence of extrajudicial killing and provide victims with redress- which is the stated goal of legislation entitled the Torture Victims Protection Act.

A)   A negligent standard will create incentives for governments to take reasonable precautions against killing their citizens.

A standard of intent that favors the victims creates incentives for governments and individuals acting under the color of law to take reasonable precautions that reduce the risk of extrajudicial killings. This definition would deter governments from negligently planning their responses to riots or strikes in a manner that would put civilians at risk of being killed unnecessarily.  It would encourage governments to closely monitor and extensively train individuals acting under the color of law to comply with international law norms around what killings are permissible. If the defendants knew that they could only be held liable if they possessed dual intent, or even single intent, they are less likely to take reasonable steps to prevent extrajudicial killing.

B)   The shooter is the least cost avoider.

A negligence standard for deliberate also distributes costs in a more equitable way.  If the standard required the intent to harm the individual, when there was no intent to harm the victim absorbs the entire costs of the shooting.  However, in many cases the victim is unable to avoid being shot, for instance, a pregnant woman sitting on the couch in her home.  They would have to take on enormous costs to avoid being shot (such as fleeing the country), or take on the cost that arose from the shooting.  The costs of prevention for the shooter are far lower.  Taking reasonable steps to prevent unnecessary deaths will create some burden on the shooter.  They may take longer to subdue the protest, and perhaps more soldiers would have been killed.  However, they both have the ability to take these reasonable steps, and avoidance is almost certainly less burdensome for them than the victim.  They could choose not to shoot or choose to avoid shooting when there is a substantial risk of harming innocent individuals.  Since tort law distributes the costs of harm among individuals, the law should use a standard that always puts the costs of shooting on the shooter because the shooter incurs fewer costs in avoiding unnecessary killing.   This should be the case whether the defendant intentionally or negligently kills the victim. While the costs of avoiding a negligent killing are higher than the costs of avoiding an intentional killing, the costs for the shooter are still lower than the costs for the victim.

C)   The government actors are more capable of absorbing the costs of avoidance and should be incentivized to ensure the costs of avoidance are not borne by a small segment of the population.

Policymakers should consider which actor is most able to avoid harm, not just which actor has the lowest costs of avoiding harm.  In extrajudicial killings, the defendant is necessarily a government agent, with all the resources and power of the government behind them.  They have the resources of the government to plan appropriately and reasonably.  They also have the resources of the government to litigate if necessary.  The victim is a citizen.  In Mamani, the victims are the most marginalized and impoverished citizens of Bolivia, although this might not be the case with every extrajudicial killing.  Even if the citizen’s costs of avoiding being killed were slightly lower than the government’s costs of avoiding shooting, the government is often more capable of absorbing a higher cost than a citizen.  In criminal law, the intent and evidentiary standards are higher because the government is the plaintiff and the justice system is concerned that the power of the government is grossly disproportionate to the power of the individual as defendant. In torts where the government is the defendant, the same principle about the power of the government should be applied.  Thus, the intent standard should be lower as the justice system should be aware that the power of the defendant government to prevent harm is grossly disproportionate to the power of the individual.

Another difference between a least-cost avoider analysis for a government and an individual is that the government considers the cost and benefit to society as a whole. The cost of a negligent government action may be borne by a few individuals, while the benefit is spread out across the entire society.  Conversely, an individual receives the whole burden of their decisions- as well as the whole benefit.  The government received the benefit from their decision to shoot- but that benefit might not have been shared equally with the plaintiff, or individuals like the plaintiff.  If the government makes a utilitarian decision that shooting some people to end a protest is necessary and will benefit society as a whole, they should be held to a very high standard of accountability to individuals who are harmed from that decision.  This will ensure that the government takes appropriate steps to avoid harming a segment of society, even if it benefits another segment of society, and will redistribute the costs throughout all of society. Ultimately a negligence standard would more frequently put the cost on the government than a standard that required a higher level of scienter, which will put the avoidance costs on the actor who is most capable of absorbing them and will redistribute avoidance costs throughout society.

The policy reasons for a stricter deliberated standard are not compelling.

There are some policy reasons for a stricter standard.  First, a stricter standard would prevent the ‘floodgates’ of litigation from opening and bringing cases from across the world into the United States. If pleading a case is more challenging, plaintiffs are less likely to make it.  Ultimately, whether this argument is persuasive depends on whether the reader is ever persuaded by the floodgates arguments that are advanced in a variety of areas of law.  Second, a stricter standard distinguishes the grievous offence of extrajudicial killing from negligent killing.  Lowering the standard for extrajudicial killing might make it seem less serious in the eyes of the public and the defendants. Similarly, torture is differentiated from inhuman or degrading treatment by the requirement that torture inflicts severe suffering. The International Criminal Tribunal for the Former Yugoslavia has stated that “the distinction between torture and inhuman or degrading treatment . . . allow[s] the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering.”[56]  Domestic statutes also differentiate between degrees of murder using standard of intent, which allows society to impose particularly severe sanctions on murder that was premeditated or carried out with a depraved heart. While imposing special liability for malicious or intentional crimes is a legitimate policy goal, tort law imposes liability in a different way than criminal law.  Criminal law divides crimes up for different levels of liability by separating crimes into different levels of scienter.  The name of the crime and the punishment is different depending on the scienter.  Conversely, in tort law the punishment is in the form of damages which are primarily calculated based on the harm to the victim.  Whether the tort was intentional or unintentional, the compensatory damages remain the same because they are based on the harm suffered by the victim.  Punitive damages may be added if a tort was committed in a particularly callous manner.  The desire to differentiate intentional extrajudicial killing from negligent accidental killing can be manifested in the damages phase, rather than the phase that articulates the elements of the offense.

VIII. Conclusion

In Mamani, the defendants are trying to avoid liability for killings by security forces by claiming that the killings were accidental or negligent. Even if their claims were true, the defendants should still be liable under the TVPA.  Prior to Mamani, no American court had ruled on what scienter would fulfill the TVPA’s deliberated requirement when security forces kill civilians while suppressing a protest. Mamani was a case of first impression, and the Eleventh Circuit Court of Appeals was wrong to rule that if the killings were accidental, as Defendants claimed, they were not extrajudicial.

Instead, the Court should have set a scienter standard that is true to the intent of the legislature and reflects the best possible policy choice.  Deliberated is ambiguous, and could refer to planning an act (single intent, negligence, or strict liability), or planning the consequences of the act (dual intent).   The legislative history does not clarify which level of scienter the drafters intended to use, but demonstrates that the drafters intended to use a definition that is consistent with international law.  International law holds security officers liable for extrajudicial killing if they were negligent in assessing if the killing was necessary.  This includes accidental and negligent deaths.  There are compelling policy reasons for using a negligence standard, including encouraging governments to take reasonable precautions before killing their citizens and placing the costs of avoidance or death on the least cost avoider and the actor who is most capable of absorbing the costs.  The alternative, higher levels of scienter, would mean that ordinary citizens would bear the cost of the government’s negligent actions.  Ultimately, the purpose of the TVPA is to prevent extrajudicial killing and provide redress for extrajudicial killing, and a negligence standard is consistent with the text of the statute and best accomplishes these goals.

[1] Lindsay Anne Bailey is a JD Candidate (2019) at Harvard Law School. The views represented in this Student Features do not reflect the views of the legal team in Mamani et al v. Sánchez de Lozada and Sánchez Berzaín.

[2] The Torture Victim Protection Act defines extrajudicial killing as a “deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.” Torture Victim Protection Act of 1991, §3(a), 28 U.S.C. § 1350 (1994).

[3] Scienter refers to the mental state sufficient to hold an individual legally accountable for their acts. The term is broader than mens rea, which solely applies to criminal intent.

[4] Mamani v. Berzaín, 654 F.3d 1148, 1152, 1155 (11th Cir. 2011). This was not a holding that the shootings were in fact accidental. Rather, it was a holding that if the shootings were accidental, as Defendants claimed and Plaintiffs disputed, then the Defendants were not liable.

[5] The case has been ongoing since September 2007, when Plaintiffs initially filed their complaints. The case went to trial from March 5 to April 3, 2018, in federal court in Fout Lauderdale. The jury ruled in favor of the plaintiffs on April 3, 2018. The judge overturned the jury verdict under Rule 50 on May 30, 2018.

[6] Second Amended Consolidated Complaint for Extrajudicial Killing; Crimes Against Humanity; and Wrongful Death at para. 6, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fl, 2013).

[7] Id. at para. 3.

[8] Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgement at 19, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fla. 2017).  Note that throughout, for the purposes of scienter accidentally refers to a shooting where security forces did not intend to hit the target, but did intend to pull the trigger.

[9] The most extensive discussion of the definition of deliberated was in Flatow where the court cited Black’s Law Dictionary to define deliberated as “[c]arried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step;” Flatow, 999 F. Supp. at 17. The majority of the other cases are conclusory about whether the killing was deliberated. See, e.g., Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 107 (D.D.C. 2000) (“the uncontroverted evidence introduced at trial demonstrated that the assassination of Cyrus Elahi was a deliberate act.”).

[10] See, e.g., Flatow, 999 F. Supp. at 17; Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1 (D.D.C. 2000); Wagner v. Islamic Republic of Iran, 172 F. Supp. 2d 128 (D.D.C. 2001); Weinstein v. v. Islamic Republic of Iran, 184 F. Supp. 2d 13 (D.D.C. 2002); Stethem v. Islamic Republic of Iran, 201 F. Supp. 2d 78 (D.D.C. 2002).

[11] See, e.g., Elahi, 124 F. Supp. 2d 97 (D.D.C. 2000); Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).

[12] Alejandre v. Republic of Cuba, 996 F. Supp. 1239 (S.D. Fla. 1997).

[13] See, e.g., Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1286 (11th Cir. 2002); Warfaa v. Ali, 33 F. Supp. 3d 653, 666 (E.D. Va. 2014).

[14] Arias v. Dyncorp, 517 F. Supp. 2d 221, 226 (D.D.C. 2007); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 112 (E.D.N.Y. 2005).

[15] See In re Agent Orange, 373 F. Supp. 2d at 112 (finding that the “use of herbicides” was not extrajudicial killing because the herbicides were not “used to intentionally inflict pain and suffering”); Arias, 517 F. Supp. 2d at 226 (holding fumigants “shifted in the wind” and drifted into Ecuador which is not a deliberated killing).

[16] In re Agent Orange, 373 F. Supp. 2d at 112.

[17] Mamani v. Berzaín, 654 F.3d 1148, 1152, 1155 (11th Cir. 2011).

[18] Flatow v. Islamic Republic of Iran, 999 F. Supp. 1, 17 (D.D.C. 1998) (citing Black’s Law Dictionary).

[19] Mamani, 654 F.3d at 1155.

[20] See, e.g., Miss. Code Ann. § 97-3-19 (Lexis Advance through the 2017 Regular and 1st Extraordinary Sessions)

(“The killing of a human being without the authority of law by any means or in any manner shall be murder . . . when done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder[.]”) Deliberated appears nowhere in the latest Model Penal Code.  It made up part of the “degree structure that has dominated American murder provisions[,]” which the latest code has removed. Model Penal Code § 210.2 cmt. (Am. Law Inst. 1984). Since the criminal law system is moving away from using malice aforethought to define mens rea, courts should be hesitant to incorporate criminal law’s definition into the TVPA.

[21] See generally, Nancy J. Moore, Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012).

[22] Restatement (Second) of Torts §8A (Am. Law Inst. 1965). See, e.g., White v. Muniz, 999 P.2d 814, 816 (Colo. 2000); Garratt v. Dailey, 279 P.2d 1091 (1955); Burr v. Adam Eidemiller, Inc., 126 A.2d 403 (1956).

[23] Restatement (Second) of Torts §8A, illus. 1 (Am. Law Inst. 1965).

[24] Under the eggshell skull rule, the plaintiff has the right to collect for unintended damages, even if they were not foreseeable. See, e.g., Caudle v. Betts, 512 So. 2d 389, 392 (La. 1987).

[25] An actor is subject to liability to another for battery if  he acts intending to cause a harmful or offensive contact with the person of the other or a third person.” See, Restatement (Second) of Torts §13 (Am. Law Inst. 1965) (emphasis added). Criminal law also assigns liability to a defendant who intended to kill one person but kills an unintended victim. See, e.g., People v. Scott, 927 P.2d 288 (1996); Model Penal Code § 2.04(2) (Am. Law Inst. 1984).

[26] See, e.g., Wagner v. Utah Dep’t of Human Servs., 122 P.3d 599, 601 (Ut. 2005); Rajspic v. Nationwide Mut. Ins. Co., 718 P.2d 1167 (1986); Maines v. Cronomer Valley Fire Dept., Inc., 407 N.E.2d 466 (1980); White v. University of Idaho, 797 P.2d 108 (Idaho 1990); Brzoska v. Olson, 668 A.2d 1355 (Del. 1995); Meyers v. Epstein, 232 F. Supp. 2d 192, 198 (S.N.D.Y. 2002); Cheney v. Studstrup, 32 F. Supp. 2d 1278, 1284 & n.6 (D. Utah 1998); Delahanty v. Hinckley, 799 F. Supp. 184, 187 (D.D.C. 1992); Williams v. Kearbey, 775 P.2d 670, 673-74 (Kan. Ct. App. 1989); Polmatier v. Russ, 537 A.2d 468, 469-70 (Conn. 1988).

[27] See, Restatement (Second) of Torts §281–282 (Am. Law Inst. 1965).

[28] Id. at 283.

[29] See id. at §282, cmt. c.

[30] Restatement (Third) of Torts §20 (Am. Law Inst. 2010). See, e.g., Klein v. Pyrodyne Corp., 810 P.2d 917 (1991)

[31] Restatement (Third) of Torts §20 cmt. b (Am. Law Inst. 2010).

[32] Miller v. Civil Constructors, Inc., 651 N.E.2d 239 (Ill. App. Ct. 1995); Resteiner v. Sturm, Ruger & Co., 566 N.W.2d 53 (Mich. Ct. App. 1997); Matulevich v. Matulevich, 498 A.2d 939 (Pa. Super. Ct. 1985).

[33] While Plaintiffs have argued in their expert reports that protests are relatively common in Bolivia, the experts do not argue that violent suppression of protests is common. While protests might be a common activity, using the military to suppress them is not. Opening Expert Report of Daniel M. Goldstein, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fl, 2016).

[34] Mamani v. Berzaín, 654 F.3d 1148, 1152, 1155 (11th Cir. 2011).

[35] H.R. Rep. No. 102-367, at 5 (1991), reprinted in 1992 U.S.C.C.A.N. 84, 87. Notably, the legislative history actually states “to include killings that lack the requisite extrajudicial intent”, but based on the context it appears that the report ought to have stated “to exclude”, and include was a typographical error.

[36] See generally, Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death, 60 A.L.R.2d 873, 3 (2017).

[37] S. Rpt. 102-249 (1991).

[38] See infra Part VI.  Notably, this memorandum does not address the definition of “necessary”.

[39] See generally, Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death, 60 A.L.R.2d 873, 3 (2017).

[40] S. Rpt. 102-249 (1991). See also id. at 5 (“definition was drafted to be consistent with the 1949 Geneva Conventions”); H. Rpt. 102-367 (1991) (The concept of “extrajudicial killings” is derived from article 3 common to the four Geneva Conventions of 1949.”); H. Rpt. 101-55, at 4 (1989) (extrajudicial killing is defined “in accordance with international standards”).

[41] H. Rpt. 100-693, at 1 (1989).

[42] Restatement (Third) of Foreign Relations Law of the United States §102, 103(2)(a)–(d) (Am. Law Inst. 1987).

[43] International Covenant on Civil and Political Rights (Article 6); Charter on Human and Peoples’ Rights (Article 4); African Charter on the Rights and Welfare of the Child (Article 5); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Article 4); Arab Charter on Human Rights (Article 5, 6); European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2); American Declaration of the Rights and Duties of Man (Article 1); American Convention on Human Rights (Article 4); Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará” (Article 4).  While the United States has not ratified all of these treaties, they can still inform the definition of what activities customary international law would consider to be extrajudicial killing.

[44]U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive approach to arbitrary killings, para 97, U.N. Doc. A/HRC/35/23 (June 6, 2017).

[45] U.N. Special Rapporteur on summary or arbitrary executions, Summary or arbitrary executions, para 96, U.N. Doc. E/CN.4/1984/29 (Feb. 21, 1984).

[46] U.N. Special Rapporteur on summary or arbitrary executions, Summary or arbitrary executions, para. 150, E/CN.4/1986/21 (Feb. 7, 1986).

[47] Id. at para 175.

[48] Case of Gul v. Turkey ¶ 80, Application no. 22676/93 (2000), http://hudoc.echr.coe.int/eng?i=001-59081.  These cases may be differentiated from Mamani because Mamani is investigating personal liability, while these regional courts assess state liability.

[49] Case of the Caracazo v. Venezuela, Judgment (Reparations and Costs) (2002), http://www.corteidh.or.cr/docs/casos/articulos/Seriec_95_ing.pdf

[50] McCann v. United Kingdom, ¶ 166 Eur. Ct. H.R. (ser. A) (1995).

[51] Id. at ¶ 200, 324.

[52] International Committee of the Red Cross, Practice Relating to Rule 11. Indiscriminate Attacks, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule11.

[53] Restatement (Third) of Foreign Relations Law of the United States §702, cmt. f (Am. Law Inst. 1987).

[54] US Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Country Report on Human Rights Practices 2000, Appendix A: Notes on the Preparation of the Reports (Feb. 23, 2001).

[55] H.R. Rep. 100-693, at 1 (1989).

[56] Judgment, Mucic et al, (IT-96-21-T), Trial Chamber, 16 November 1998, para. 488.