340 F.Supp.2d 885 (N.D.Ill. 2004), 00 C 2905, Boim v. Quranic Literacy Institute

Docket Nº:00 C 2905.
Citation:340 F.Supp.2d 885
Party Name:Stanley BOIM, Individually and as Administrator of the Estate of David Boim, deceased, and Joyce Boim, Plaintiffs, v. QURANIC LITERACY INSTITUTE, Holy Land Foundation for Relief and Development, Islamic Association for Palestine, American Muslim Society, American Middle Eastern League for Palestine, United Association for Studies and Research, Moha
Case Date:November 10, 2004
Court:United States District Courts, 7th Circuit, Northern District of Illinois
 
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340 F.Supp.2d 885 (N.D.Ill. 2004)

Stanley BOIM, Individually and as Administrator of the Estate of David Boim, deceased, and Joyce Boim, Plaintiffs,

v.

QURANIC LITERACY INSTITUTE, Holy Land Foundation for Relief and Development, Islamic Association for Palestine, American Muslim Society, American Middle Eastern League for Palestine, United Association for Studies and Research, Mohammed Abdul Hamid Khalil Salah, Mousa Mohammed Abu Marzook, Amjad Hinawi, and the Estate of Khalil Tawfiq Al-Sharif, Defendants.

No. 00 C 2905.

United States District Court, N.D. Illinois, Eastern Division.

Nov. 10, 2004

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Stephen J. Landes, Richard Michael Hoffman, Matthew Mark Garrett, Aaron Louis Solomon, Wildman, Harrold, Allen & Dixon, Shelly Byron Kulwin, Kulwin & Associates, Chicago, IL, Nathan Lewin, Alyza D. Lewin, Lewin & Lewin, LLP, Washington, DC, for Plaintiffs.

William H. Theis, Federal Defender Program, John M. Beal, Reuben L. Hedlund, Dean M. Trafelet, Sarah Jean Deneen, Hedlund & Hanley LLC, Chicago,

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IL, Nancy Hollander, John W. Boyd, Zachary A. Ives, John D. Cline, Freedman, Boyd, Daniels, Peifer, Hollander, Guttmann & Goldberg, Albuquerque, NM, Ruth A. Wagoner, Glast, Phillips and Murray P.C., Dallas, TX, Stephen Y. Ma, Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro LLP, Los Angeles, CA, Michael Edward Deutsch, People's Law Offices, James Russell Fennerty, James R. Fennerty & Associates, LLC, Brendan Shiller, Law Office of Brendan Shiller, LLC, Chicago, IL, Ashraf Nubani, Becker, Hicks, Irving and Hadeed, Springfield, VA, Matthew J. Piers, Frederick Scott Rhine, Mary M. Rowland, Jonathan A. Rothstein, Gessler Hughes Socol Piers Resnick & Dym Ltd., Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

KEYS, United States Magistrate Judge.

This case arises out of the murder of David Boim, a seventeen-year-old American citizen who was killed in a Hamas terrorist attack in the West Bank. David's parents sued two men who were directly involved in the murder, as well as several U.S.-based individuals and organizations they claim helped to support Hamas, for violation of 18 U.S.C. § 2333. The case is before the Court on motions for summary judgment.

A. Factual Background

1. Procedural History of Boim v. OLI, et al.

On May 13, 1996, David Boim, a citizen of both the United States and Israel who was living in Israel with his parents, both United States nationals, was shot in the head while waiting for a bus in the West Bank. David's father, Stanley Boim, testified at his deposition that, shortly after the attack, "it became public knowledge as reported in the media that Hamas was behind it." Transcript of Deposition of Stanley Boim, p. 14. The official document reporting David's death indicated that David had died from a "Gunshot Wound; a victim of a terrorist attack as stated in Israeli death certificate issued by the Ministry of Interior at Jerusalem on June 3, 1996." See Report of the Death of an American Citizen Abroad (attached as Exhibit 2 to Plaintiffs' (HLF) Rule 56.1 Statement). And a 1997 article from the Jerusalem Post indicates that one of the men wanted for his involvement in the attack, "Khalil Ibrahim Tawfik Sharif," who went on to kill himself in a 1997 suicide bomb attack on a Jerusalem pedestrian mall, was a Hamas activist. See "3rd Ben-Yehuda Bomber Identified," Jerusalem Post, October 30, 1997 (attached as Exhibit 11 to Plaintiffs' Rule 56.1 Statement in support of its motion against HLF).1 Another of the attackers, Amjad Hinawi, confessed to participating in the attack; he was charged by the Palestinian Authority with participating in a terrorist act and as an accomplice in the killing of David Boim. Despite his confession, Mr. Hinawi pled not guilty, but was tried and convicted on both counts, and sentenced to ten years of hard labor. See Notes of United States Foreign Service Officer Abdelnour Zaibeck, a representative from the Consulate General of the United States, who attended Mr. Hinawi's court proceedings (attached as Exhibit 6 to Plaintiffs' (HLF) Rule 56.1 Statement); Report of Sentence of Amjad Mu'hamad Rashid Al'hinawi (attached as Exhibit 10 to Plaintiffs' (HLF) Rule 56.1 Statement).

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On May 12, 2000, David's parents, Stanley and Joyce Boim, sued Mr. Hinawi and the estate of Khalil Tawfiq Al-Sharif, who had by that time blown himself up in the suicide bombing. They also sued Mousa Mohammed Abu Marzook, who allegedly served for many years as the admitted leader of Hamas' political wing in the United States, and Mohammed Abdul Hamid Khalil Salah, who allegedly served as the United States-based leader of Hamas' military branch. See Complaint, pp 11-12. The Boims also named as defendants the Quranic Literacy Institute ("QLI"), the Holy Land Foundation for Relief and Development ("HLF"), the Islamic Association for Palestine ("IAP"), the American Muslim Society (d/b/a the Islamic Association for Palestine in Chicago) ("AMS"), and the American Middle Eastern League for Palestine ("AMELP")--all entities that, according to the complaint, directly or indirectly raise and launder money for Hamas and finance Hamas' terrorist activities. See Complaint, pp 5, 6,7, 8, 9. Finally, the Boims sued the United Association for Studies and Research ("UASR"), which allegedly serves as Hamas' political command center in the United States. Id., ¶ 10.

In each case, the Boims sought to hold the defendants civilly liable under the Antiterrorism Act of 1990 (the "Antiterrorism Act"), 18 U.S.C. § 2300 et seq. (West 2004). The Antiterrorism Act provides, in pertinent part:

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 district court of the United States and ... recover threefold the damages he or she sustains and the cost of the suit, including attorney's fees.

18 U.S.C. § 2333. The Boims alleged that defendants Hinawi and Al-Sharif were directly involved in David's murder, and that the remaining defendants provided material support to Hamas. See Complaint, ¶ 54. They requested compensatory damages in the amount of $100,000,000 and punitive damages in the amount of $100,000,000, plus fees and costs. The Boims further requested that, in accordance with the Antiterrorism Act, their damages be trebled, and they sought an injunction preventing defendants from raising any additional money for Hamas. Id., pp 56, 58.

Defendants QLI, HLF, Salah, IAP, AMS, and AMELP all moved to dismiss the Boims' complaint, arguing that the Boims' claim really sought to impose "aiding and abetting" liability, and that such liability was precluded under § 2333. In an opinion issued January 10, 2001, the district judge disagreed, and denied the motions, holding that § 2333 permitted a cause of action based on the theory that the "defendants aided and abetted international terrorism." See Boim v. Quranic Literacy Institute, 127 F.Supp.2d 1002, 1018 (N.D.Ill.2001). The next month, following a request by QLI, the district court certified three questions for appeal:

(1) does funding, simpliciter, of an international terrorist organization constitute an act of terrorism under 18 U.S.C. § 2331?;

(2) does 18 U.S.C. § 2333 incorporate the definitions of international terrorism found in 18 U.S.C. §§ 2339A and 2339B?; and

(3) does a civil cause of action lie under 18 U.S.C. § 2331 and § 2333 for aiding and abetting international terrorism?

See Boim v. Quranic Literacy Institute, et al., No. 00 C 2905 (N.D. Ill. Minute Order entered February 22, 2001).

Before the appeal was heard, the parties consented to proceed before a United States Magistrate Judge, and the case was

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reassigned to this Court on April 13, 2001. The Seventh Circuit set the appeal for argument on September 25, 2001, and issued its decision on June 5, 2002. The court first held that the Boims may succeed in their claims against the organizational defendants by proving that they "provided material support to terrorist organizations." Boim v. Quranic Literacy Institute, 291 F.3d 1000, 1016 (7th Cir. 2002). On the question of whether 18 U.S.C. § 2333 is broad enough to cover the conduct of persons who, like the organizational defendants, did not themselves commit the violent acts complained of, the court held, after noting that the interpretation of § 2333 was a matter of first impression, that "aiding and abetting liability is both appropriate and called for by the language, structure and legislative history of section 2333," because "[t]he only way to imperil the flow of money and discourage the financing of terrorist acts is to impose liability on those who knowingly and intentionally supply the funds to the persons who commit the violent acts." Id. at 1021.

The court held that this did not, as the defendants argued, amount to imposing "guilt by association" in violation of the First Amendment: "[t]hat Hamas may also engage in legitimate advocacy or humanitarian efforts is irrelevant for First Amendment purposes if HLF and QLI knew about Hamas' illegal operations, and intended to help Hamas accomplish those illegal goals when they contributed money to the organization." Id. at 1024 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 932, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982); Scales v. United States, 367 U.S. 203, 229, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Noto v. United States, 367 U.S. 290, 298, 81 S.Ct. 1517, 6 L.Ed.2d 836 (1961); Healy v. James, 408 U.S. 169, 186, 92 S.Ct. 2338, 33 L.Ed.2d 266 (1972); National Organization for Women, Inc. v. Scheidler, 267 F.3d 687, 703 (7th Cir. 2001)). The court also rejected defendants' argument that liability could not be imposed under § 2333 if, as contended,...

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