Mamani v. Berzaín

• Decision Date: 14 February 2018
• Docket Number: CASE NO. 08–21063–CIV–COHN/SELTZER,CASE NO. 07–22459–CIV–COHN/SELTZER
• Court: U.S. District Court — Southern District of Florida
• Parties: Eloy Rojas MAMANI, et al., Plaintiffs, v. José Carlos Sánchez BERZAÍN, Defendant in No. 07–22459, Gonzalo Daniel Sánchez De Lozada Sánchez Bustamante, Defendant in No. 08–21063.

309 F.Supp.3d 1274

Eloy Rojas MAMANI, et al., Plaintiffs,

v.José Carlos Sánchez BERZAÍN, Defendant in No. 07–22459,Gonzalo Daniel Sánchez De Lozada Sánchez Bustamante, Defendant in No. 08–21063.

CASE NO. 07–22459–CIV–COHN/SELTZER

CASE NO. 08–21063–CIV–COHN/SELTZER

United States District Court, S.D. Florida.

Signed February 14, 2018

Anthony DiCaprio, Pro Hac Vice, Rye, NY, Christine D. Doniak, Pro Hac Vice, Harley Raff, Pro Hac Vice, Jennifer L. Woodson, Pro Hac Vice, Joseph Sorkin, Pro Hac Vice, Saurabh Sharad, Pro Hac Vice, Akin Gump Strauss Hauer & Feld LLP, Beth Stephens, Pro Hac Vice, Jennifer M. Green, New York, NY, Daniela M. Spencer, Pro Hac Vice, Edward A. Woods, Pro Hac Vice, Erica Abshez Moran, Pro Hac Vice, Mariya Hutson, Pro Hac Vice, Zachary J. Franklin, Pro Hac Vice, Jeremy F. Bollinger, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, CA, Ilana Tabacinic, Akerman Senterfitt, Ira Jay Kurzban, Kurzban Kurzban Weinger Tetzeli & Pratt, P.A., Miami, FL, Jason Weil, Pro Hac Vice, Ruben H. Munoz, Pro Hac Vice, Akin Gump Strauss Hauer & Feld LLP, David Rudovsky, Kairys Rudovsky Messing & Feinberg LLP, Philadelphia, PA, Paul L. Hoffman, Pro Hac Vice, Schonburn DeSimone Seplow Harris & Hoffman LLP, Venice, CA, Thomas Becker, Pro Hac Vice, Tyler Richard Giannini, International Human Rights Clinic at Harvard Law School, Cambridge, MA, Steven H. Schulman, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, for Plaintiffs.

Evan Benjamin Berger, Becker & Poliakoff, Ft. Lauderdale, FL, Giselle Barcia, Pro Hac Vice, Greg S. Hillson, Pro Hac Vice, James E. Gillenwater, Pro Hac Vice, Jean Ralph Fleurmont, Pro Hac Vice, Kannon K. Shanmugam, Pro Hac Vice, Stephen D. Raber, Pro Hac Vice, Suzanne Salgado, Pro Hac Vice, Ana C. Reyes, Kevin M. Downey, Pro Hac Vice, Williams & Connolly, LLP, Washington, DC, Alan M. Dershowitz, Cambridge, MA, for Defendants.

ORDER DENYING DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT

JAMES I. COHN, United States District JudgeTHIS CAUSE is before the Court upon Defendants' Joint Motion for Summary Judgment [DE 342 in Case No. 07–22459; DE 321 in Case No. 08–21063] ("Motion").¹ The Court has carefully considered the Motion, Plaintiffs' Response and Defendants' Reply, the parties' related submissions, and the record in these cases, and is otherwise advised in the premises. For the reasons set forth below, Defendants' Motion is denied.

I. INTRODUCTION

These cases concern the Bolivian government's alleged massacre of its own civilians during a period of civil unrest in Bolivia in 2003. Plaintiffs—nine Bolivian residents and citizens—are the relatives of eight Bolivian civilians who, it is alleged, were deliberately killed by the Bolivian military.² The crux of Plaintiffs' claims is that two former high-ranking Bolivian government officials—the former President, Gonzalo Daniel Sánchez de Lozada Sánchez Bustamante ("Defendant Lozada"), and the former Minister of Defense, José Carlos Sánchez Berzaín ("Defendant Berzaín")—masterminded a violent military campaign that led to Plaintiffs' relatives' deaths, all in an effort to quell public opposition to their unpopular political agenda. Based on these allegations, Plaintiffs seek to hold Defendants personally liable for compensatory and punitive damages under the Torture Victim Protection Act of 1991 ("TVPA"), Pub. L. No. 102–256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 note), and state law.

Defendants now move for summary judgment. First, Defendants argue that there is no evidence that any of Plaintiffs' relatives were intentionally killed by the Bolivian military. Second, Defendants contend that even if there were evidence that members of the Bolivian military intentionally targeted and killed the decedents, there is no evidence supporting Defendants' indirect liability for those deaths. Third, Defendants assert that Plaintiffs' state-law claims fail as a matter of law. Fourth and finally, Defendants say that the claims of two Plaintiffs cannot proceed due to individual deficiencies.

II. FACTS

The facts central to Defendants' summary judgment Motion, taken in the light most favorable to Plaintiffs, the nonmoving parties, are set out below.

A. Background

Defendant Lozada served as the democratically-elected President of Bolivia from August 1993 to August 1997 and again from August 2002 to October 2003. Defendants' Statement of Material Facts ("SMF") [DE 341] ¶ 1. Defendant Berzaín served as Minister of Defense during Defendant Lozada's second term as president, between early August 2003 and October 2003. Id. ¶ 2.

In 2001, approximately a year and a half before Bolivia's 2002 presidential election, Defendants agreed to a plan whereby they would use military force to kill civilians in order to quash public opposition to their economic programs. Plaintiffs' Ex. H (Canelas Decl. ¶¶ 4–7).^{3 ,4} Specifically, Defendants sought to "avoid the problems that President Hugo Banzer Suarez faced during the ‘Water War.’ " Id. ¶ 5. During the "Water War" of 1999 and 2000, the Bolivian government was forced to abandon a plan to privatize the water system in Cochabamba, Bolivia in the face of massive protests. See Defendants' Ex. RR (Lozada Dep. Tr. 53:5–54:8).⁵ To avoid civilian opposition similarly derailing their policies and programs, Defendants planned to use trained troops from eastern Bolivia, as opposed to conscripts, to confront protesters. Plaintiffs' Ex. H (Canelas Decl. ¶ 6). Defendant Berzaín stated that it would be necessary to "kill two or three thousand people." Id. Defendant Lozada indicated that he approved of what Defendant Berzaín said. Id. ¶ 7.

On August 8, 2002, two days after entering office, Defendant Lozada issued Presidential Decree 26757, designating members of the Armed Forces to form his Military High Command, including, inter alia , Commander Juan Veliz Herrera. Plaintiffs' Counterstatement of Material Facts ("CSMF") [DE 375–1] ¶ 205. Less than a week later, on August 14, Commander Herrera approved the "Manual on the Use of Force." Id. ¶ 206; Plaintiffs' Ex. BBBB (Resolution 11/02). Among other things, the "Manual on the Use of Force" characterized "roadblocks, marches, [and] demonstrations" as subversive acts and authorized the use of military force against "subversive elements trying to prevent Army Units from accomplishing their constitutional missions and the orders received." Plaintiffs' Ex. YYY (Manual on the Use of Force at 13–14). It specified, though, that "[t]he use of legal violence is only justified in situations of extreme necessity, and as a last resort when all appropriate methods of persuasion have failed." Id. at 14. Five months later, on January 12, 2003, Commander Herrera released the "Republic Plan." CSMF ¶ 207. Under this plan, the Bolivian National Army was to "apply the Principles of Mass and Shock" to, inter alia , remove roadblocks and control civil disturbances. Plaintiffs' Ex. ZZZ (Republic Plan at 1).⁶

One of Defendant Lozada's policy aims in his second term was to raise domestic revenue by exporting Bolivia's natural gas reserves. See, e.g., Plaintiffs' Ex. BB (Bedoya Dep. Tr. 75:22–78:10). This plan had been initiated by the prior administration. Defendants' Ex. 48 (Berindoague Dep. Tr. 76:22–77:5). The parties dispute whether a decision was ever finalized to export natural gas through Chile. Nevertheless, Defendants concede that "some members of the public believed that Bolivia was going to sell gas through Chile, and, indeed, to Chile itself." SMF ¶ 16. The plan to export Bolivia's natural gas reserves, and a number of other issues, led to protests in Bolivia in 2003. See, e.g., Plaintiffs' Ex. L (del Granado Decl. ¶¶ 8, 11, 16–17).

Peaceful, negotiated solutions to these protests were unsuccessful. Instead, Defendants employed military force on multiple occasions, leading to civilian deaths. For instance, in January 2003, Defendant Lozada participated in negotiations in Cochabamba aimed at addressing rising tensions between coca farmers in the Chapare region of Bolivia and the Bolivian military. Plaintiffs' Ex. B (Albarracín Decl. ¶ 16). The negotiations were initially successful and a tentative agreement was reached; however, after Defendant Berzaín entered the room and indicated his opposition to the tentative agreement, Defendant Lozada changed his position and the deal fell apart. Id. The Bolivian government ultimately employed military force in Chapare, resulting in four deaths and dozens of injuries. Id.

In February 2003, the government again employed military force against protesters, this time in Bolivia's capital, La Paz, resulting in 33 deaths, including civilians. Id. ¶ 20; Plaintiffs' Ex. L (del Granado Decl. ¶¶ 8–9).⁷ When the mayor of La Paz called Defendant Berzaín to express concern about the violence and the need to pacify the city, Defendant Berzaín said: "Mayor, if there are 5 dead, it doesn't matter if there are 50 more, as long as we solve the problem." Plaintiffs' Ex. L (del Granado Decl. ¶ 9). Shortly after the events of February 2003, Defendant Berzaín left the government—though he maintains that his resignation was unconnected to the violence. Plaintiffs' Ex. VV (Berzaín Dep. Tr. 106–108).

In March 2003, in response to the violence of February, the Permanent Assembly of Human Rights of Bolivia—a nongovernmental human rights organization—sought to address the rising tensions in Bolivia by inviting all of the country's political parties and social organizations to a meeting to discuss an agreement to promote national unity. Plaintiffs' Ex. B (Albarracín Decl. ¶ 21). The only political party that did not attend was Defendants' party, the National Revolutionary Movement, which had sent an observer without authority to participate. Id. The meeting failed to produce an agreement. Id.

B. The Events of September 2003 in Sorata and Warisata

The most significant protests began in September 2003, and by the second week of September, peasant leaders went on a hunger strike in El Alto, Bolivia and...