BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
SB 1057 (Anderson)
Version: February 16, 2016
Hearing Date: May 3, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Terrorism: civil action
DESCRIPTION
This bill would authorize a person injured by an act of
terrorism, as defined, to bring an action to recover damages
against a person or entity who either: (1) committed the act of
terrorism; (2) aided the person or entity to commit the act of
terrorism, as specified; or (3) coerced, induced, or solicited
the person or entity to commit the act of terrorism. An act of
terrorism would include the commission of any one of specified
acts, if the offender has the intent to intimidate or coerce the
civilian population, influence the policy of a unit of
government by intimidation or coercion, or affect the conduct of
a unit of government by intimidation or coercion. Qualifying
acts include, among others: killing of a human being, including
unlawful homicide or manslaughter; arson; felony vandalism;
robbery; rape; torture; looting; and carjacking.
The bill would provide that the amount awarded may be up to
three times the damages actually incurred, but in no event less
than $10,000. The bill would permit a civil action or
proceeding under this section to be commenced at any time within
five years after the injury caused by the act of terrorism is
suffered, as specified.
BACKGROUND
Other states, including Arkansas and Tennessee, the author
reports have enacted what is known as "Andy's Law," named after
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Private William "Andy" Long who was killed at a shooting at the
Little Rock Mall Army Recruiting Center on June 1, 2009.
This bill seeks to enact "Andy's Law" in this state and create a
civil remedy against persons or entities who either: commit the
act of terrorism; aid a person or entity to commit the act of
terrorism; or coerce, induce, or solicit the person or entity to
commit the act of terrorism, as specified.
CHANGES TO EXISTING LAW
Existing law provides that every person has, subject to the
qualifications and restrictions provided by law, the right of
protection from bodily restraint or harm, from personal insult,
from defamation, and from injury to his personal relations.
(Civ. Code Sec. 43.)
Existing law provides that every person is bound, without
contract, to abstain from injuring the person or property of
another, or infringing upon any of his or her rights. (Civ. Code
Sec. 1708.)
Existing law provides that everyone is responsible, not only for
the result of his or her willful acts, but also for an injury to
another caused by his or her lack of ordinary care or skill in
the management of his or her property or person, except so far
as the latter has, willfully or from lack of ordinary care,
brought the injury upon himself or herself. (Civ. Code Sec.
1714(a).)
Existing federal law , the Antiterrorism Act of 1990, establishes
criminal offenses and penalties for acts of international and
domestic terrorism, including criminal penalties for those who
harbor or conceal terrorists, and those who provide material
support to terrorists, provide material support or resources to
designated foreign terrorist organizations, or who finance
terrorism. (18 U.S.C. Sec. 2331 et seq.)
Existing federal law , the Antiterrorism Act of 1990, defines
"international terrorism" to mean activities that:
involve violent acts or acts dangerous to human life that
violate federal or state law, or that would be a criminal
violation if committed within the jurisdiction of the U.S. or
of any State;
appear to be intended: (i) to intimidate or coerce a civilian
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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;
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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
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of terrorism may bring an action to recover damages against the
following persons and entities:
a person or entity who committed the act of terrorism;
a person or entity who aided the person or entity to commit
the act of terrorism; and
a person or entity who coerced, induced, or solicited the
person or entity to commit the act of terrorism.
This bill would provide that the amount awarded may be up to
three times the damages actually incurred, but in no event less
than $10,000. A prevailing plaintiff shall be awarded
reasonable attorney's fees and costs of investigation and
litigation.
This bill would provide that all persons or entities who commit
an act of terrorism, aid the person or entity to commit the act
of terrorism, or coerce, induce, or solicit the person or entity
to commit the act of terrorism, are jointly and severally liable
for all damages, attorney's fees, and costs of investigation and
litigation.
This bill would provide that notwithstanding any law, a civil
action or proceeding for an act of terrorism may be commenced at
any time within five years after the injury caused by the act of
terrorism. If a criminal prosecution proceeds against a person
or entity who committed an act of terrorism, aided the person or
entity to commit the act of terrorism, or coerced, induced, or
solicited the person or entity to commit the act of terrorism,
this bill would provide for the tolling of the statute of
limitations during the pendency of that criminal prosecution.
This bill would define "aiding a person or entity to commit an
act of terrorism" as raising, soliciting, collecting, or
providing material support or resources with the intent that it
will be used, in whole or in part, to plan, prepare, carry out,
or aid in any act of terrorism, hindering the prosecution of
terrorism, or the concealment of, or escape from, an act of
terrorism. This bill would further define various terms for
these purposes.
COMMENT
1. Stated need for the bill
According to the author:
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On June 1st 2009, terrorism hit home in Little Rock, Arkansas
when a Jihadist terrorist, Abdulhakim Mujahid Muhammad
(formerly known as Carlos Bledsoe) shot two U.S. Army soldiers
outside a recruiting office in a shopping mall. Killed in
that attack was Private William "Andy" Long. Private Quinton
I. Ezeagwula was wounded.
To fully comprehend the true nature of the threat of
terrorism, one must understand that, though Muhammad had been
labeled a "lone wolf," such terrorism does not happen in a
vacuum.
Before he became Abdulhakim Mujahid Muhammad, Carlos Bledsoe
was recruited. He was indoctrinated. He was selected to
receive training in Yemen and after completing that training,
committed horrible acts of terrorism in what he himself termed
"Jihad."
Terrorism doesn't just happen. It is perpetrated both by
individuals that are motivated and trained, and by those who
support their efforts with money and that motivation and
training.
Currently, there is no avenue in California for victims of
terrorism or their families to seek civil damages against
those who facilitate acts of terrorism. The federal RICO
[Racketeer Influenced and Corrupt Organizations] statute does
not provide meaningful remedies because it only allows damages
for business losses and property damage, and not for personal
injury or wrongful death.
This bill would allow victims of terrorism and their families
to begin to heal by allowing them to recover damages and
attorney's fees from those who facilitate acts of terrorism.
By giving victims and their families the legal tools to
collect restitution by seizing assets will bring
responsibility to those who up to now have been able to hide
in the shadows of these heinous acts. [ . . . ]
2. This bill appears duplicative of existing civil actions
While the author references the federal Racketeer Influenced and
Corrupt Organizations (RICO) Act (a federal law that provides
for extended criminal penalties and a civil cause of action for
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acts performed as part of an ongoing criminal organization) as
providing insufficient remedies to victims of terrorism or their
families, there are a host of state laws that would provide for
remedies for a victim of the various acts listed under the bill
as acts of terrorism. In addition, to the extent that this
bill's definition of terrorism also potentially applies to acts
of international terrorism, there are also remedies currently
available under the Federal Antiterrorism Act.
First, the Antiterrorism Act (ATA) of 1990 provides for criminal
and civil penalties for acts of international and domestic
terrorism, including criminal penalties for those who harbor or
conceal terrorists, and those who provide material support to
terrorists, provide material support or resources to designated
foreign terrorist organizations, or who finance terrorism. (18
U.S.C. Sec. 2331 et seq.) The ATA provides that any national of
the United States injured in his or her person, property, or
business by reason of an act of international terrorism, or his
or her estate, survivors, or heirs, may sue therefor in any
appropriate U.S. district court and shall recover threefold the
damages he or she sustains and the cost of the suit, including
attorney's fees. (See 18 U.S.C. Sec. 2333.)
Second, most, if not all, of the acts listed in this bill would
arguably be subject to a civil cause of action under California
law already, including causes of action for assault and battery,
wrongful death, false imprisonment, damage to personal property,
and negligent or intentional infliction of emotional distress,
among others. This bill would appear to create an additional
cause of action for a broad range of acts, based on the intent
of the individual to intimidate or coerce the civilian
population, to influence the policy of a unit of government by
intimidation or coercion, or to affect the conduct of a unit of
government by intimidation or coercion. (See Comment 3 for
more.)
Ultimately, it appears that this bill seeks to establish
liability for any persons or entities that "aided the person or
entity to commit the act of terrorism" or that "coerced,
induced, or solicited" the person or entity directly committing
the act of terrorism, where secondary liability might not
otherwise exist for such individuals under state law. (See
Comments 4 and 5.) Also, as the bill is currently drafted, it
is unclear whether this bill is aimed solely at domestic acts of
terrorism, or if it is intended to also capture the commission
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of such terrorist acts outside of California, and perhaps
internationally. To the extent that this bill seeks to address
the shortcomings of the federal RICO statutes by allowing
victims to seek relief against those who motivated and trained
or otherwise financially supported the persons or entities who
committed the acts of terrorism, a question arguably arises as
to whether public policy would not be better served to address
such acts by way of amending the state's RICO statute, the
California Control of Profits and Organized Crime Act (Pen. Code
Sec. 186 et seq.), to allow for the criminal prosecution of
these activities. Furthermore, given that the federal law
provides for a similar civil cause of action under the ATA for
acts of international terrorism, which are violent acts or acts
dangerous to human life that violate federal or state law and
that appear to be intended to: (i) intimidate or coerce a
civilian population; (ii) influence the policy of a government
by intimidation or coercion; or (iii) affect the conduct of a
government by mass destruction, assassination, or kidnapping, a
question also arises as to whether the bill would be federally
preempted to the extent that it could be interpreted to apply to
create a cause of action for qualifying acts that are committed
internationally.
Lastly, insofar as the bill also seeks to assist families of the
victims to seek redress against these individuals who aided or
were complicit in the act of terrorism, staff notes the bill
only creates a civil action for "a person who is injured" by the
act of terrorism (i.e., the direct victim of the killing, rape,
torture, looting, arson, carjacking, or other qualifying act),
and not for the person's survivors or heirs.
3. Broad definition of terrorism could wholly reclassify
certain existing crimes as terrorism and otherwise classify
certain acts as an "act of terrorism" when tied to political
beliefs or protests of government
This bill would define "terrorism" as the commission of certain
acts, if the offender has the intent to: (1) intimidate or
coerce the civilian population; (2) influence the policy of a
unit of government by intimidation or coercion; or (3) affect
the conduct of a unit of government by intimidation or coercion.
The bill provides for a host of qualifying acts, including, not
just the killing of a human being or kidnapping, but also acts
such as arson, felony vandalism, robbery, looting, aggravated
mayhem, and carjacking, among other things. Moreover, the bill
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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
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law, this bill might not only be duplicative, but also create
practical confusion for victims and potential defendants as to
what statute of limitations would control the exact same set of
circumstances.
4. Determining the intent of those who "aid" the commission of
terrorist acts could prove difficult
Generally, a party does not have a duty to protect an individual
from the acts of a third party, though there may be a duty to
protect an individual when there is a special relationship
between the parties, such as with the relationship between an
innkeeper and guest, or business owner to the public on his or
her property. Such "secondary" liability generally attaches the
responsibility for harm or damages caused by a person (the
person who is directly responsible and holds primary liability)
to another person (who does not have the primary liability or
obligation), when a party induces others to break the law or
otherwise contributes to the breaking of the law, or when a
party controls others who break the law. This is seen, for
example, in cases where an employer is held to be vicariously
liable for the negligent acts of his or her employees, or in the
case of a parent's imputed liability for the willful acts of his
or her child.
This bill seeks to create a specific private right of action
against any person who aids the person or entity to commit the
act of terrorism or who coerces, induces, or solicits the person
or entity directly committing the act of terrorism. For these
purposes, a person or entity is deemed to have "aided a person
or entity to commit an act of terrorism" if they raise, solicit,
collect, or provide material support or resources "with the
intent that it will be used, in whole or in part, to plan,
prepare, carry out, or aid in any act of terrorism, hindering
the prosecution of terrorism, or the concealment of, or escape
from, an act of terrorism." "Material support or resources"
includes currency or other financial assistance or financial
services, as well as instruments of value, lodging, training,
safehouses, false documentation or identification, communication
equipment, computer equipment, software, facilities, weapons,
lethal substances, explosives, personnel, transportation, and
other physical assets, except the provision of medical attention
by a licensed health care provider or religious materials.
Insofar as an element of an "act of terrorism" under this bill
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involves the "intent" of the person or entity, in the commission
of any of the bill's qualifying acts of terrorism, to intimidate
or coerce the civilian population, influence the policy of a
unit of government by intimidation or coercion, or affect the
conduct of a unit of government by intimidation or coercion, the
bill raises a question as to what types of factors or facts are
relevant in determining intent, particularly when considering
indirect acts of third parties of entities. Likewise, the bill
raises a question as to what constitutes "intent" that the
material support or resources will be used to "plan, prepare,
carry out, or aid in any act of terrorism, hindering the
prosecution of terrorism, or the concealment of, or escape from
an act of terrorism." At what point could the act of providing
legal aid funds to a defendant after the act, transmitting
messages on social media cites before the act, or providing
financial support from a religious institution to a recent
immigrant from the Middle East before the act, for example, be
interpreted as aiding the commission of an act of terrorism?
Ultimately, while the intent of the person directly committing
the act of terrorism may be easily discerned if the person made
closely connected statements before or during the commission of
the act, the intent of a person who "aided" in the commission of
the act is likely much more difficult to determine when
evaluating the possible intent behind indirect acts.
5. Potential secondary liability of commercial banks providing
financial services
As noted in the comments above, the federal ATA provides for
civil remedies for any U.S. national who is injured in his or
her person, property, or business by reason of an act of
international terrorism. Similar to this bill, the ATA also
applies to acts of those who provide material support to
terrorists, provide material support or resources to designated
foreign terrorist organizations, or finance terrorism.
Specifically, any person who provides material support or
resources, knowing or intending that they are to be used either
in preparation for, or in carrying out, or in concealing an
escape from the commission of, a violation of specified laws,
including provisions of the ATA (or any person who attempts or
conspires to do such an act), is subject to fines and
imprisonment under the ATA. Notably, the ATA similarly defines
"material support or resources" to include any property,
tangible or intangible, or service, including currency or
monetary instruments or financial securities, financial
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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)
[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
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just because the killer bought the gun with money withdrawn from
the bank." (Id.) Nonetheless, courts have "expanded [such
reasoning] beyond the realm of conscious payments or donations
to include even the routine processing of wire transfers by
third-party financial institutions. (Id. citing Goldberg v.
UBS, 660 F.Supp.2d 410, 427 (E.D.N.Y. 2009),
Given its similarities to the ATA, this bill could feasibly be
interpreted to impose broad liability on various entities, even
in the absence of any actual intent or reasonable knowledge on
the part of the entity as to how the funds will be used.
6. Statute of limitations for third parties or entities is
uncertain
Under this bill, a claim must be brought within five years of
the injury caused by the act of terrorism. Practically
speaking, however, a third person or entity alleged to have
secondary liability could be sued years, if not decades, after
they committed an act alleged to have aided, coerced, induced,
or solicited the terrorist act. For example, a wire transfer or
purchase of a weapon could take place 10 years in advance of the
act of terrorism for wholly unrelated reasons. Yet under this
bill, the person could be sued up to 15 years later because the
five year clock does not start until the date of the injury that
was caused by the act of terrorism. This could greatly
undermine the party's ability to provide an adequate defense.
Support : El Dorado District Attorneys Association; Huntington
Park Police Department; Yreka Police Department
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : None Known
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