Braun v. Islamic Republic of Iran

• Decision Date: 09 January 2017
• Docket Number: Civil Action No. 15-cv-1136 (BAH)
• Citation: 228 F.Supp.3d 64
• Parties: Shmuel Elimelech BRAUN, et al., Plaintiffs, v. ISLAMIC REPUBLIC OF IRAN, et al., Defendants.
• Court: U.S. District Court — District of Columbia

228 F.Supp.3d 64

Shmuel Elimelech BRAUN, et al., Plaintiffs,

v.ISLAMIC REPUBLIC OF IRAN, et al., Defendants.

Civil Action No. 15-cv-1136 (BAH)

United States District Court, District of Columbia.

Signed January 9, 2017

Robert Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, for Plaintiffs. Joseph Tolchin, The Berkman Law Office, LLC, Brooklyn, NY, for Plaintiffs.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Chaya Zissel Braun, an infant, was with her two parents in Jerusalem on October 22, 2014, when she was killed in a vehicular attack (the "Attack"). See Consolidated Compl. ("Compl.") ¶¶ 1, 3, ECF No. 14. Her family members and estate initiated this action against the Islamic Republic of Iran ("Iran"), the Iranian Ministry of Information and Security ("MOIS"), and the Syrian Arab Republic ("Syria") under the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602, et seq. , asserting claims for damages caused by the killing, allegedly perpetrated by Hamas with material support from the defendants. Id. ¶¶ 1–10. The defendants never entered appearances in or defended against this action, and the plaintiffs now seek default judgment. See Pls.' Mot. J. Default & Schedule Evidentiary Hr'g ("Pls.' Mot."), ECF No. 31. For the reasons discussed below, the motion for default judgment is granted.

I. BACKGROUND

The factual background surrounding the terrorist attack at issue is summarized below, followed by an overview of the procedural history of this case. The factual background is based upon allegations in the Complaint, as well as the detailed declarations submitted by the plaintiffs in support of their motion for default.¹

A. The Defendants' Support of Hamas

"Hamas is a radical terrorist organization ... established by Islamic militants in 1987" and constitutes "the Palestinian branch of the extremist Muslim Brotherhood organization." Compl. ¶ 11. The organization "views Israel and the United States as the greatest enemies of Islam" and "opposes a peaceful resolution of the Middle East conflict," having as its "openly-declared goal ... the creation of an Islamic state in the territory of Israel, the West Bank and the Gaza Strip, and the destruction of the State of Israel and the murder or expulsion of its Jewish residents." Id. ¶¶ 12–13. "Hamas proudly and openly acknowledges that it uses terrorism to achieve its political goals ... [and] has carried out thousands of terrorist attacks in Israel, the West Bank and the Gaza Strip." Id. ¶¶ 13–14. The United States government has categorized Hamas as a "Specially Designated Terrorist" since 1995, a "Foreign Terrorist Organization" since 1997, and a "Specially Designated Global Terrorist" since 2001. Id. ¶ 17.

Since 1984, Iran "has been continuously designated by the United States Department of State as a state sponsor of terrorism." Id. ¶ 18. In the 1980s, Iran and Hamas reached an agreement, remaining in force today, under which "Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Iran undertook to provide Hamas with financial support to carry out such extrajudicial killings and terrorist attacks." Id. ¶ 20. In funding Hamas, Iran and MOIS intended to assist Hamas in "terrorizing the Jewish civilian population in Israel and weakening Israel's economy, social fabric, and military strength and preparedness" through "acts of extrajudicial killing and international terrorism" including the Attack. Id. ¶ 19.

Iran's support for Hamas has been well-documented in the U.S. Department of State's annual reports on terrorism, which noted in 2014 that "Iran has historically provided weapons, training, and funding to Hamas and other Palestinian terrorist groups," and that while "Hamas's ties to Tehran have been strained due to the Syrian civil war," Iranian and Hamas leaders have nevertheless affirmed a continuing relationship. Clawson Expert Decl. ¶ 31 (quoting the U.S. Department of State's 2014 annual report on terrorism). In 2003, the U.S. Department of State indicated that "Iranian state sponsorship of Hamas is critical not only in terms of providing the material and funds with which to carry out terrorist operations, but also the rhetorical support necessary to keep up the pace of such operations." Levitt Expert Decl. ¶ 39.

Since 1979, Syria, too, "has been continuously designated by the United States Department of State as a state sponsor of terrorism." Id. ¶ 27. Like Iran, Syria reached an agreement with Hamas in the 1980s under which "Hamas undertook to carry out acts of extrajudicial killing and terrorism against Jews in Israel, the West Bank and Gaza, and in return Syria undertook to provide Hamas with material support and resources to carry out such extrajudicial killings and terrorist attacks." Id. ¶ 29. In the years preceding the Attack, Syria provided, inter alia , financial support, arms, "training for the planning and execution of terrorist attacks," and "safe haven and refuge" to Hamas and its operatives. Id. ¶¶ 30–34.

Notably, Syria served as a "planning hub" for Hamas leadership for many years, Berti Expert Decl. ¶ 37, and, while exercising "de facto control of Lebanon ... granted Hamas the ability to be present in a limited manner in both Lebanon and Syria," id. ¶ 39. While under Syria's protection, "Hamas was able to organize political events from Damascus," id. ¶ 40, as well as to "access both [Syria's] military strategists and ... [another known terrorist organization's] resources in Lebanon, from which Hamas was able to learn terrorist strategies," Deeb Expert Decl. ¶ 23. While Syria no longer supports Hamas because of that organization's support for rebel forces in the Syrian civil war, Hamas continues to use "the tactical know-how which Hamas gained while under Syrian protection." Id. ¶¶ 22–24.

B. The Attack in Jerusalem, Israel, on October 22, 2014

On the afternoon of October 22, 2014, Abdel Rahman Shaludi, an "agent and operative of Hamas" and the nephew of the former head of its military wing, drove a car to a light rail station in Jerusalem and intentionally "drove onto the light rail tracks and rammed his vehicle into the crowd of pedestrians." Id. ¶¶ 37–39. Among the crowd were Chana and Shmuel Braun, along with their infant daughter, Chaya Zissel Braun, who was in a stroller. Id. ¶ 39. The car struck the stroller, "causing [Chaya Zissel] to be thrown some ten meters into the air," before she "landed on her head on the pavement while her mother ... screamed in horror." Id. "[C]onnected to a ventilator and in critical condition," Chaya Zissel was transported by rescue personnel to a nearby hospital, where "she was pronounced dead some two hours after her arrival." Id. ¶ 41. In addition to killing Chaya Zissel, the Attack killed one other person and "knocked over and badly injured" Shmuel. Id. ¶¶ 1, 39. Hamas "publicly praised the [A]ttack and referred to the attacker as a ‘martyr’ and ‘hero.’ "Id. ¶ 46.

C. The Decedent and her Family

Chaya Zissel Braun was a three-month old United States citizen living in Israel at the time of her death. Id. ¶ 3. Her young parents had "tried to conceive a child unsuccessfully for over a year following [their] wedding" before conceiving Chaya Zissel, Chana Braun Decl. ¶ 4, and the infant was "enjoying good health, industrious and in possession of all her faculties," Compl. ¶ 64, when the Attack occurred.

Chaya's mother, Chana Braun, a United States citizen, was walking with Chaya Zissel at the time of the Attack. After Chaya Zissel had been thrown from her stroller, Chana Braun "ran to pick her up ..., screaming for help," and "could see that the baby's head was deformed and smashed, and that she was bleeding." Chana Braun Decl. ¶ 12. While crying out for help, Chana "heard gunshots and thought the terrorist was shooting at [them]," though she later realized the gunshots were directed at the terrorist by the police. Id. ¶ 13. Immediately after the Attack, Chana observed Chaya Zissel begin vomiting, which gave her hope that the infant would survive. Id. ¶ 14. Chana was with Chaya Zissel in the ambulance and at the hospital while medical professionals attempted to save the infant's life. Id. ¶¶ 16–27. Since the Attack, Chana "frequently feel[s] depressed" and in "overwhelming pain," for which concerns she began to see a therapist. Id. ¶ 37. Some days she "can function adequately," but at other times she feels "paralyzed." Id. ¶ 38. While she and Shmuel have been "very fortunate to welcome [a] second baby," Chaya Zissel's death has "somewhat affected [Chana's] ability to care for" the new child, and "[a]nything that triggers memories of Chaya Zissel causes [Chana] deep pain and feelings of loss." Id. ¶¶ 41–43.

Chaya Zissel's father, Shmuel Braun, a United States citizen, was also walking with Chaya Zissel at the time of the Attack. When Chaya Zissel was thrown out of her stroller, Shmuel "was thrown to the ground after being pushed into the moving train." Shmuel Braun Decl. ¶ 7. While the events immediately following the Attack are "all a blur," Shmuel knows he "was limping

and in terrible pain" and was transported to the hospital with Chaya Zissel and Chana, where he was treated while Chaya Zissel was also being treated. Id. ¶¶ 8–9. He "sustained ... several physical injuries, including broken ribs and a torn ligament in [his] knee." Id. ¶ 31. Since the Attack, Shmuel has experienced severe "emotional and psychological distress," including grief for which he began therapy and "anxiety and fear that another disaster will strike," as well as continuing physical pain in his knee. Id. ¶¶ 16, 28, 31.

Shmuel's parents, Esther and Murray Braun, also United States citizens, were at home in Los Angeles, California, when the Attack occurred. See Esther Braun Decl. ¶¶ 1, 11. Chana and Chana's father, Shimshon Halperin, informed them of the Attack, which they also learned about from news outlets. See id. ¶¶ 7–12; Murray Braun Decl. ¶¶ 7–14. They...