Daily Dicta: Debevoise; Blank Rome Score for Victims of Long-Ago Massacre
A federal judge in Philadelphia has refused to dismiss a suit against a man accused of leading a military unit in Liberia that slaughtered 600 unarmed civilians who had taken shelter in a church.
December 20, 2018 at 04:11 PM
7 minute read
File this under “The arc of the moral universe is long, but it bends toward justice,” as Dr. Martin Luther King Jr. once said.
A federal judge in Philadelphia has refused to dismiss a suit against a man accused of leading a military unit in Liberia that slaughtered 600 unarmed civilians who had taken shelter in a church.
The ruling by U.S. District Judge Petrese Tucker means that claims against Moses Thomas under the Torture Victim Protection Act and Alien Tort Statute can move forward. Debevoise & Plimpton; Blank Rome and the Center for Justice and Accountability brought the suit behalf of four Liberian citizens.
Thomas, who allegedly commanded an elite special forces unit, now lives in the Philadelphia area. He moved to the United States in 2000, applying for immigration status under a program intended to assist victims of war crimes. Crimes like the ones he allegedly committed.
According to a story in The Guardian, the 65-year-old is now a jovial, popular server at a Philadelphia restaurant that specializes in West African food. His longtime Liberian girlfriend is listed as the sole owner of the restaurant, as well as the three-bedroom house where they live. He reportedly stays fit by playing soccer in the park with friends.
The contrast between that life and the atrocities described in the suit is obscene.
The complaint by Debevoise partner Catherine Amirfar; Blank Rome partner Laurence Shtasel and Nushin Sarkarati of the Center for Justice and Accountability focuses on the night of July 29, 1990, when Liberia was in the midst of civil war.
The Liberian Council of Churches and the Red Cross had established a humanitarian aid center—marked with a Red Cross flag—at St. Peter's Lutheran Church in the capital of Monrovia where refugees took shelter.
Thomas allegedly commanded 45 soldiers, who entered the church in the middle of the night and opened fire on the sleeping men, women and children.
“Countless people were felled by bullets, until the bodies piled up on the floor,” the complaint states. “A few of the residents, including plaintiffs, survived by hiding under piles of dead bodies and feigning death as soldiers stabbed fallen victims to ensure that they were truly dead. Some women were raped before they were murdered. Soldiers looted the belongings of those they killed. Following the shooting, soldiers used cutlasses to hack many of the injured or hiding survivors to death.”
No one in Liberia has been held accountable for the massacre.
Still, the suit against Thomas under the Torture Victim Protection Act and Alien Tort Statute faced some big hurdles.
The first was the statute of limitations—10 years.
“Plaintiffs allege they suffered injuries as a result of defendant's alleged actions on July 26, 1990. Plaintiffs did not filed [sic] suit against defendant until February 12, 2018, almost 28 years later,” wrote Thomas' lawyer, solo practitioner Nixon T. Kannah. “Because more than ten (10) cause of action [sic] passed between the incident that allegedly injured plaintiffs and plaintiffs' initiation of this lawsuit, the court should dismiss plaintiffs' complaint in its entirety.”
Judge Tucker was not persuaded. She noted that under extraordinary circumstances, courts of appeal have tolled the statute of limitations for Torture Victim Protection Act claims. Among them: existence of a civil war, a justifiable fear of violent reprisal, the defendant's absence from the United States and a defendant who conceals his identity or whereabouts.
“In this case, plaintiffs' complaint is rife with allegations sufficient to establish, for pleading purposes, that the limitations period on Plaintiffs' TVPA claims should be tolled,” she wrote. Tucker also found the Alien Tort claims were likewise tolled.
Tucker also rejected the argument that the victims failed to exhaust their local remedies in Liberia before turning to the U.S. courts.
Noting that Liberia has never prosecuted a single war crime arising from the civil wars, that the plaintiffs would likely face retaliation if they were to seek redress in Liberia, and “the fact that the Liberian judiciary appears unable or unwilling to provide an adequate forum for the pursuit of claims rooted in the civil wars,” Tucker ruled it would be futile to purse the claims there.
There's also the question whether the issues sufficiently “touch and concern” the United States to rebut the general presumption against the court's jurisdiction over extraterritorial claims, per the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum in 2013.
The judge pointed to the alleged involvement by Thomas in a violent raid of the USAID compound in Monrovia, the fact that Thomas lives in Pennsylvania and his “allegedly fraudulent participation in a U.S. visa and immigration program designed to benefit the victims of the crimes that defendant himself allegedly perpetrated.”
Amirfar of Debevoise praised the decision as “a significant step towards finally bringing justice to the victims of the Lutheran Church massacre.”
The St. Louis judge concluded there was “substantial evidence” to support the $550 million in compensatory damages and that punitive damages, which totaled more than $4 billion, were constitutional.
The case stemmed from BuzzFeed's 2017 publication of an unverified intelligence dossier on Russian interference in the 2016 presidential election.
“Because it is the will of Congress—not the whims of the executive—that determines the standard for expedited removal, the court finds that those policies are unlawful.”
The 21-page complaint, filed in the D.C. Superior Court, alleges that Facebook's “lax oversight and enforcement of third-party applications” demonstrates how the company falls short of its commitment to its users.
Quinn Emanuel Urquhart & Sullivan partner David Mader led Bloomberg's legal representation, facing off against UBS' legal team led by Cahill Gordon & Reindel partner Charles Gilman.
The plaintiffs' complaint alleged that Apple, because of its concern over texting-while-driving accidents, had secured a patent covering a lockout mechanism for hand-held devices, but did not implement any version of the mechanism on the iPhone 5.
In case you missed it…
It's time for a favorite holiday tradition—the U.S. Chamber Institute for Legal Reform's annual list of the year's 10 most ridiculous lawsuits.
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