Lafontant v. Aristide, No. CV 93-4268.

• Court: United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
• Citation: 844 F. Supp. 128
• Decision Date: 27 January 1994
• Parties: Gladys M. LAFONTANT, Plaintiff, v. Jean-Bertrand ARISTIDE, Defendant.
• Docket Number: No. CV 93-4268.

844 F. Supp. 128

Gladys M. LAFONTANT, Plaintiff,
v.
Jean-Bertrand ARISTIDE, Defendant.

No. CV 93-4268.

United States District Court, E.D. New York.

January 27, 1994.

844 F. Supp. 129

Andrew D. Greene, Lake Success, NY, for plaintiff.

Michael Krinsky, Thomas C. Viles, Rabinowitz, Boudin, Standard, Krinsky & Lieberman, New York City, Ira J. Kurzban, Kurzban, Kurzban & Weinger, Miami, FL, for defendant.

Lois Bonsal Osler, Asst. U.S. Atty., Dept. of Justice, Millicent Y. Clarke, Asst. U.S. Atty., Dept. of State, for U.S.

MEMORANDUM AND ORDER

WEINSTEIN, Senior District Judge:

The question posed by this case is whether the recognized head of a state who has violated the civil rights of a person by having him killed can avoid civil prosecution in this country

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by virtue of his status. The answer is yes

Defendant seeks dismissal as a matter of law. For purposes of this opinion only it must be assumed that plaintiffs allegations are true.

Plaintiff, a resident of Queens, New York, seeks compensation in money damages for the killing of her husband, Dr. Roger Lafontant, by Haitian soldiers acting on the specific order of the then and present President of Haiti, Jean-Bertrand Aristide. She bases jurisdiction on 28 U.S.C. §§ 1331, 1350 note, § 2(a), 1651, 2201 and 2202 and the doctrine of pendent jurisdiction. Her cause of action is predicated on: Article 2, § 2, Clause 1 and Article 6, Clause 2 of the Constitution of the United States; 28 U.S.C. § 1350 (Alien Tort Statute); 28 U.S.C. § 1350 note, § 2(a) (Torture Victim Protection Act); 28 U.S.C. §§ 2201 and 2202, 8 U.S.C. § 1252(c), "the wrongful death statutes"; the United Nations Charter; the Universal Declaration of the Rights and Duties of Man; and customary international law.

Defendant submitted a suggestion of immunity under 22 U.S.C. § 254d claiming that President Aristide is immune from suit because of his status as the head-of-state of the Republic of Haiti. He asks the court to quash service of process and dismiss the action.

The Court requested the view of the United States government. The State Department then submitted a suggestion of immunity letter, filed with the Court by the Justice Department pursuant to 28 U.S.C. § 517. Section 517 provides, in pertinent part:

any officer of the Department of Justice may be sent by the Attorney General to ..... any district in the United States to attend to the interests of the United States in a suit pending in a court in the United States.

A final judgment, quashing service of process on President Jean-Bertrand Aristide and dismissing the action was promptly entered. This memorandum explains why this result is required.

I. Facts

According to the complaint, on January 7, 1991, Dr. Roger Lafontant, along with others, attempted a coup d'etat to prevent Haitian president-elect, Jean-Bertrand Aristide, from taking office. The next day, the coup was thwarted. Lafontant had been a central figure in Haitian politics for many years; he had held the position of Secretary of the Interior, Secretary of Defense and other positions in former Haitian governments. He was arrested and jailed for his participation in the failed coup and sentenced to life imprisonment on July 29, 1991.

President Aristide then, it is alleged, instructed Captain Stagne Doura, a member of the Armed Forces of Haiti, to execute Lafontant. These orders were carried-out by Private First Class Sincere Leus who shot and killed Lafontant in a Haitian prison at midnight September 29, 1991. President Aristide's conduct, it is alleged, under color of law of the Republic of Haiti, constituted a criminal act and tort that was not officially sanctioned or in furtherance of the defendant's official function as President.

Two days after this killing, President Aristide was exiled from Haiti following a successful military coup. He has since been living in the United States.

The United States government has consistently recognized Jean-Bertrand Aristide as the current lawful head-of-state of the Republic of Haiti. When President Bush received the credentials of President Aristide's designated ambassador, Jean Casimir, he publicly stated that "the United States continues to recognize President Aristide as the duly elected President of Haiti." Statement of President Bush (Oct. 1, 1991). In a speech by Secretary of State James Baker on October 2, 1991 before the Organization of American States he declared, "we the United States government will not recognize this outlaw regime." Address Before Organization of American States (OAS), Washington, D.C. (Oct. 2, 1991). See also, Exec. Order No. 12775, 56 Fed.Reg. 50641, § 3(a) (Prohibiting Certain Transactions with Respect to Haiti, Oct. 4, 1991) ("The term `de facto regime in Haiti' means those who seized power illegally from the democratically elected

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government of President Jean-Bertrand Aristide on September 30, 1991 ..."); Exec. Order No. 12779, 56 Fed.Reg. 55975, § 3(a) (Prohibiting Certain Transactions with Respect to Haiti, Oct. 28, 1991); Suspension of Politico-Military Transactions with Respect to Haiti, 56 Fed.Reg. 50968 (Department of State Notice, Oct. 3, 1991) (referring to the coup ousting "the democratically elected President, Fr. Jean-Bertrand Aristide"); Notice of September 30, 1992, 57 Fed.Reg. 45557 (Continuation of Haitian Emergency) (President Bush refers to "assault on Haiti's democracy represented by the military's forced exile of President Aristide"); Proclamation No. 6569, 58 Fed.Reg. 31897 (Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Formulate or Implement Policies That Are Impeding the Negotiations Seeking the Return to Constitutional Rule in Haiti, June 3, 1993) (refers to "the expulsion from Haiti of President Aristide and the constitutional government"); Notice of Sept. 30, 1993, 58 Fed.Reg. 51563 (Continuation of Haitian Emergency) (President Clinton refers to "President Aristide, the democratically elected head of the Government of Haiti"); Statement by the President, Oct. 29, 1993 ("I have called President Aristide and Prime Minister Malval today to reaffirm America's commitment to finding a negotiated solution to this crisis."). Secretary of State Warren Christopher on February 15, 1993, described the military regime in Haiti as "those who hold illegal power" and President Clinton referred on October 1, 1993, to President Aristide as "the democratically elected head of the Government of Haiti."

In reply to defendant's suggestion of immunity, plaintiff submitted what purports to be a letter signed by President Aristide on September 30, 1991, relinquishing his title as President of the Republic of Haiti. She also relies on the fact that on October 6, 1991, the parliament of Haiti applied Article 149 of the Constitution of Haiti which governs succession in the event of a presidential vacancy. On October 8, 1991 a judge of the Supreme Court of Haiti, Joseph Nerette, was sworn in as temporary President of Haiti. Mr. Nerette chose Jean Jacques Honorat as Prime Minister on October 11, 1991. On October 16 the new government was approved by the parliament. This government functioned in Haiti until June 19, 1992, when President Nerette stepped aside. An agreement was signed between the defendant and Lieutenant General Raoul Cedras allowing President Aristide to return to Haiti by October 30, 1993 (the Governor's Island Agreement). President Aristide did not return to Haiti by that date and has remained continuously outside Haiti since the coup d'etat.

Defendant questions the assertion that the agreement "permits" President Aristide to return to Haiti. He claims that the agreement provides for the nomination of a Prime Minister, commander-in-chief of the Armed Forces, and the granting of an amnesty, all to be undertaken "by the President of the Republic." It is his contention that the "President of the Republic" refers to President Aristide.

Plaintiff has also submitted a copy of an arrest warrant dated November 6, 1991, issued for President Aristide's arrest by a criminal court in Haiti. This warrant charges President Aristide with the assassination of plaintiff's husband, Dr. Lafontant.

The Justice Department submitted a suggestion of immunity letter. It states in pertinent part:

The United States has an interest and concern in this action against President Aristide insofar as the action involves the question of immunity from the Court's jurisdiction of the head-of-state of a friendly foreign state. The United States' interest arises from a determination by the Executive Branch of the Government of the United States, in the implementation of its foreign policy and in the conduct of its international relations, that permitting this action to proceed against President Aristide would be incompatible with the United States' foreign policy interests.

II. Law

A. Common Law Head-of-State Immunity

A head-of-state recognized by the United States government is absolutely immune from personal jurisdiction in United

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States courts unless that immunity has been waived by statute or by the foreign government recognized by the United States. A visiting head-of-state is generally immune from the jurisdiction of a foreign state's courts. See, e.g. Mr. Saltany v. Reagan, 702 F.Supp. 319 (D.C.C.1988), order aff'd in part, reversed in part (on other grounds), 886 F.2d 438 (D.C.Cir.1989), cert. denied, 495 U.S. 932, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990) (granting head-of-state immunity to Prime Minister of England in suit alleging violations of international law); Kilroy v. Windsor, Civ. No. C-78-291 (N.D.Ohio 1978), (Prince Charles, The Prince of Wales, granted immunity from suit alleging human rights violations in Northern Ireland), excerpted in 1978 Dig.U.S.Prac.Int'l L. 641-43; Psinakis v. Marcos, Civ. No. C-75-1725 (N.D.Cal. 1975), excerpted in 1975 Dig.U.S.Prac. Int'l L. 344-45 (immunity granted to...