Mamani v. Sanchez de Lozada and Sanchez Berzain

In September 2007, with the assistance of the International Human Rights Clinic and others, Bolivian plaintiffs initiated an Alien Tort Statute (ATS) and Torture Victim Protection Act suit against former Bolivian President Gonzalo Sánchez de Lozada and former Minister of Defense José Carlos Sánchez Berzaín.  The case, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, alleges that the Defendants planned and carried out attacks on civilians that left dozens dead and hundreds injured in 2003 as part of a government effort to suppress opposition to a controversial economic policy.  The Washington Post called it the most significant ATS lawsuit against a former head of state since the case against Ferdinand Marcos.

The complaint seeks damages against the Defendants for their involvement in the extrajudicial killings and crimes against humanity.  Since the case was originally filed, seven former high-ranking Bolivian officials and military leaders have been convicted for their participation in the violence of 2003.  Sánchez de Lozada and Sánchez Berzaín, however, have found a safe harbor from justice in the United States for nearly a decade.

The complaint alleges that the Defendants waged a deliberate campaign of killing, calculating months in advance it would take thousands of civilian deaths to stop anticipated protests over their economic policy.  Refusing to negotiate with protesters, the Defendants chose to rely on military forces, including special forces units, to target innocent civilians.  The complaint also details how, in addition to planning the campaign, the Defendants were intimately involved in its execution, including participating in the operations against the civilian population.

Among the Plaintiffs in the case is Etelvina Ramos Mamani, who watched her eight-year old daughter Marlene die in her arms, after Marlene was targeted by a military sharpshooter while standing at a window in their home.  As national outrage and protests intensified over Marlene’s death and the many other deaths and injuries, President Gonzalo Sánchez de Lozada resigned.  He and Sánchez Berzaín then fled to the United States, where they currently reside.

As co-counsel, the Clinic has been involved in all phases of the litigation from the outset, including researching and drafting for the complaint and various motions and briefs, assisting with oral arguments, and undertaking more than six investigative missions to Bolivia since 2007.

In 2008, the defendants filed a motion to dismiss the 2007 complaint, which the plaintiffs opposed. Oral arguments on the motion were held in October 2008 before the U.S. District Court for the Southern District of Florida. In November 2009, the district court ruled in plaintiffs’ favor on the motion to dismiss, allowing claims for crimes against humanity and extrajudicial killings to move forward against both defendants. The defendants then appealed to the Eleventh Circuit, with briefing in 2010 and 2011 and oral argument in May 2011. In August 2011, the Eleventh Circuit ruled in favor of the defendants. In September 2011, plaintiffs filed a petition for rehearingor rehearing en banc; the petition was denied and the case was remanded to the lower court.

In early 2012, the case was stayed pending judgment by the Supreme Court in Kiobel v. Royal Dutch Petroleum Co. In June 2013, the case was reopened by the district court, with the plaintiffs filing an amended complaint detailing new allegations.

The defendants then filed a motion to dismiss the complaint in September; the plaintiffs filed their opposition to the motion to dismiss in December; and the defendants filed their reply in support of the motion to dismiss in January 2014. On May 20, 2014, Judge James Cohn ordered that the plaintiffs’ claims under the Torture Victim Protection Act (TVPA) could proceed because they sufficiently alleged facts that “plausibly suggest that these killings were deliberate” and because they adequately alleged that the defendants were responsible for the killings.

The case was stayed on August 19, 2014 pending defendants’ appeal of the district court’s decision, and appellants-defendants filed their brief to the Eleventh Circuit Court of Appeals on January 14, 2015.  Plaintiffs-appellees filed their brief on March 6, 2015.  Military law scholars and international human rights law professors filed briefs of amici curiae on March 13, 2015.

On June 16, 2016, the Eleventh Circuit rejected the defendants’ effort to scuttle the lawsuit and sent the case back to the district court with a mandate to proceed to discovery.

Discovery started during the fall of 2016 and continued into 2017.  The defendants filed their motion for summary judgment in November 2017 and Plaintiffs filed their opposition in late December 2017.  Defendants filed their reply in January 2018, and the Court asked Plaintiffs to file a sur-reply later that month.  On February 14, 2018, the defendants’ motion for summary judgment was denied (ruling in Spanish).

On March 5, the case went to trial in Federal District Court in Fort Lauderdale; it marked the first time in U.S. history that a former head of state sat before his accusers in a U.S. human rights trial.

On April 3, the jury found the former president of Bolivia and his minister of defense responsible for extrajudicial killings carried out by the Bolivian military in September and October 2003. The jury awarded a total of $10 million in compensatory damages to the plaintiffs.

After the jury announced its verdict, the defendants made a motion asking the judge to overturn the jury’s finding of liability against both defendants. Both parties submitted briefing on this issue in April and May. On May 30, 2018, Judge James I. Cohn overturned the unanimous jury’s decision, citing insufficient evidence to support the verdict.

The plaintiff team filed a brief to appeal in early October. Additionally, current and former U.N. Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executions, retired U.S. military commanders, and law of war scholars submitted amicus briefs on behalf of the plaintiffs. Oral arguments are scheduled for November 19, 2019.

The partner attorneys on the case are Judith Brown Chomsky and Beth Stephens of the Center for Constitutional Rights; Steven Schulman, Michael Small, and Jeremy Bollinger of Akin, Gump, Strauss, Hauer & Feld, LLP; James Cavallaro and Clara Long of Stanford Law School’s International Human Rights and Conflict Resolution Clinic; David Rudovsky of Kairys, Rudovsky, Messing & Feinberg, LLP; Paul Hoffman of Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP; and Miami attorney Ira Kurzban of Kurzban, Kurzban, Weinger, Tetzeli, and Pratt, PA.

Contacts for this case: Tyler Giannini and Susan Farbstein

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