Mamani v. Berzaín
This text of 309 F. Supp. 3d 1274 (Mamani v. Berzaín) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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.
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.' "
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."
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.
*1283In February 2003, the government again employed military force against protesters, this time in Bolivia's capital, La Paz, resulting in 33 deaths, including civilians.
Free access — add to your briefcase to read the full text and ask questions with AI
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.
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.' "
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."
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.
*1283In February 2003, the government again employed military force against protesters, this time in Bolivia's capital, La Paz, resulting in 33 deaths, including civilians.
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.
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 began a blockade of roads in the high plateau region (the "altiplano "). Plaintiffs' Ex. L (del Granado Decl. ¶ 11). These roadblocks led to approximately 1,000 tourists in Sorata, Bolivia-there to celebrate a popular annual religious festival-becoming stranded in the town. See Defendants' Ex. 11 (Three Prosecutors' Rep. at 454);8 Defendants' Ex. 61 (Ramirez Dep. Tr. 50:8-51:18, 129:18-23). The parties dispute how dire the situation in Sorata became as the blockade continued for over a week, but there is evidence that food supplies were running low and that, while some tourists were able to leave, others were unable. See, e.g., Defendants' Ex. 61 (Ramirez Dep. Tr. 74:11-19); Defendants' Ex. 98 (Ramirez Dep. Tr. 131:19-133:21); Plaintiffs' Ex. QQQ (Ramirez Dep. Tr. 37:2-5); Plaintiffs' Ex. J (Davis Decl. ¶ 7). There is also evidence that diplomatic representatives, concerned for the safety and security of their citizens, demanded that Bolivia's government intervene. Defendants' Ex. 11 (Three Prosecutors' Rep. at 454).
Amidst these rising tensions, Defendant Berzaín had returned to the cabinet as Minister of Defense sometime in August 2003. Plaintiffs' Ex. VV (Berzaín Dep. Tr. 108). Between September 10 and 12, 2003, the Republic Plan was put into effect by the military. Plaintiffs' Ex. NN (Transcript, Audio Recording of Trial of Responsibilities Testimony of Juan Veliz Herrera at 2-4).9 Additionally, in September *12842003, the Commander in Chief of the Armed Forces issued a "Red Alert"-[redacted].
Community leaders from Sorata met with their counterparts in Warisata, Bolivia on September 18 to negotiate how to get the tourists out of Sorata over the coming days. Plaintiffs' Ex. N (García Decl. ¶ 3).10 ,11 Two days later, however, the Bolivian government sent in a convoy of army and police forces to transport the tourists (and ultimately some Sorata residents who decided to leave due to the situation) out of Sorata. Defendants' Ex. 11 (Three Prosecutors' Rep. at 455). Defendant Berzaín also arrived in Sorata on September 20-with Defendant Lozada's authorization-and local community leaders spoke with Defendant Berzaín to discuss a plan to transport people through the roadblocks, including those in Warisata, without military interference. Plaintiffs' Ex. N (García Decl. ¶ 8); Plaintiffs' Ex. VV (Berzaín Dep. Tr. 121:15-122:14, 124:16-125:18). Defendant Berzaín, who was in ongoing contact with Defendant Lozada, rejected the non-military alternative, stating to the community leaders that there were orders from the government to remove the tourists "the good way or the bad way" and that "if you oppose this, you will face consequences." Plaintiffs' Ex. N
*1285(García Decl. ¶¶ 9-10); Plaintiffs' Ex. RR (Lozada Dep. Tr. 216:7-18); Plaintiffs' Ex. VV (Berzaín Dep. Tr. 122:11-13). As he continued to be pressed by community leaders, Defendant Berzaín responded: "Fucking Indians, I'm going to shoot you. Leave me to do my work." Plaintiffs' Ex. N (García Decl. ¶ 14). Defendant Berzaín then ordered military officers to look for bus drivers to transport the tourists.
Also on September 20, a meeting took place in El Alto between government officials and community leaders in an effort to resolve the conflict peacefully. Defendants' Ex. 58 (Harb Dep. Tr. 30:11-33:3). These negotiations were ongoing and had yet to reach an impasse when they ended abruptly after the community leaders received phone calls about the military operation to escort the tourists out of Sorata.
Late in the morning on September 20, the military convoy accompanying the buses of tourists left Sorata for La Paz, by way of Warisata. See, e.g., Plaintiffs' Ex. S (Smith Decl. ¶ 14); Plaintiffs' Ex. N (García Decl. ¶ 17). Defendant Berzaín departed Sorata by helicopter. Plaintiffs' Ex. VV (Berzaín Dep. Tr. 126-27). [redacted]
On the way from Sorata to Warisata, people on the buses observed soldiers firing at unarmed civilians. Plaintiffs' Ex. J (Davis Decl. ¶ 13); Plaintiffs' Ex. S (Smith Decl. ¶¶ 18-25). There is some evidence that civilians threw rocks at the convoy, and even used dynamite. See Defendants' Ex. 11 (Three Prosecutors' Rep. at 455); Plaintiffs' Ex. S (Smith Decl. ¶ 16). There is also evidence, however, that at the times when soldiers fired upon civilians en route to Warisata, the civilians were not throwing rocks or otherwise posing a threat to the convoy. Plaintiffs' Ex. S (Smith Decl. ¶ 20); Plaintiffs' Ex. J (Davis Decl. ¶¶ 13, 16).
By the afternoon of September 20, the buses reached Warisata but stopped for approximately two hours on the road before entering the town. Plaintiffs' Ex. S (Smith Decl. ¶ 27). [redacted] Shortly afterwards, Defendant Lozada signed a written order directing General Gonzalo Rocabado, the acting Commander in Chief of the Armed Forces, to use "necessary force" to restore order.
In addition to the convoy, other soldiers arrived in Warisata from the opposite direction at approximately 3:00 p.m. on September 20. Plaintiffs' Ex. A (Vargas Decl. ¶ 15). The army and police forces in Warisata were fired upon from the hills and some local homes, and soldiers and policemen were killed. Defendants' Ex. 11 (Three Prosecutors' Rep. at 455).12 There is also evidence, however, that the military shot indiscriminately at civilians when there were no armed civilians firing shooting at the soldiers. See Plaintiffs' Ex. A (Vargas Decl. ¶¶ 17, 19-22); Plaintiffs' Ex. QQ (Rojas Mamani Dep. Tr. 75:12-77:3). Soldiers were ordered to switch from non-lethal to lethal munitions and to "shoot *1286anything that moves." Plaintiffs' Ex. A (Vargas Decl. ¶¶ 17-18).13 They "were never, in any way, warned that [they] should try to avoid civilian casualties."
For three to four hours, the military advanced and reached the home of decedent Marlene Nancy Rojas Mamani ("Decedent Marlene Mamani") in Warisata. Plaintiffs' Ex. QQ (Rojas Mamani Dep. Tr. 77:15-23); Plaintiffs' Ex. PP (Ramos Mamani Dep. Tr. 22:7-24:16). Decedent Marlene Mamani, an eight-year-old girl, was fatally shot by a single bullet while standing at the window of her home. Plaintiffs Ex. PP (Ramos Mamani Dep. Tr. 22:7-24:16). After Decedent Marlene Mamani was shot, her mother looked out the window and the only people she saw were soldiers.
C. The Events of October 12, 2003 in El Alto
In response to reports of the military's use of force against civilians, opponents of the Lozada government began significant campaigns of civil disobedience in and around La Paz. These campaigns took the form of protests, marches, roadblocks, general strikes, and demonstrations. Their central focal point was the city of El Alto, which is located on a high plateau that stands above La Paz and contains one of the main roads going in and out of the capital. See Defendants' Ex. 43 (Bedoya Dep. Tr. 199:15-200:20); Defendants' Ex. 46 (Bedoya Dep. Tr. 199:15-200:20); Plaintiffs' Ex. N (García Decl. ¶¶ 28-30); Plaintiffs Ex. T (Soria Decl. ¶ 4); Plaintiffs' Ex. U (Zabala Decl. ¶¶ 4-5, 8-9). The parties dispute the extent to which these protests impacted La Paz. At a minimum, however, it is undisputed that at times the city was brought to a standstill, public transportation was light (if not nonexistent), and stores, restaurants, and other businesses were mostly closed. See, e.g., Plaintiffs Ex. T (Soria Decl. ¶ 6); Plaintiffs' Ex. U (Zabala Decl. ¶ 11); Defendants' Ex. 48 (Berindoague Dep. Tr. 62:11-12); Defendants' Ex. 55 (Meruvia Dep. Tr. 18:13-19:10).
At the same time, the Lozada government continued its mobilization of the Armed Forces. Following the violence in Warisata on September 20, new soldiers, rations, and weapons arrived at the Ingavi barracks in El Alto. Plaintiffs' Ex. A (Aguilar Vargas Decl. ¶¶ 26, 28).15 Among *1287the new units were Green Berets, tank crews, military police, and artillery regiments.
Events reached a tipping point starting on October 10. Late that evening, Defendant Berzaín held a meeting at the Ministry of Defense with top military officers, as well as leaders from the La Paz Gas Stations Association. Plaintiffs' Ex. O (Loza Decl. ¶¶ 12-13, 15-16). There, Defendant Berzaín emphasized the need to alleviate gas shortages by transporting gas to La Paz from the Senkata gas plant in El Alto.
Meanwhile, the Lozada government rejected efforts by civil society groups to negotiate a peaceful end to the tensions. On the evening of October 11, representatives from the Catholic Church and the Permanent Assembly of Human Rights of Bolivia met with Defendant Lozada and his ministers. Plaintiffs' Ex. B (Albarracín Decl. 32-33). In order to show that the government was more responsive and less reliant on force, the representatives suggested that Defendant Lozada replace Defendant Berzaín and one other minister.
Also on October 11, Defendant Lozada issued, with the signed approval of his cabinet, Decree 27209. Defendants' Ex. 6 (Supreme Decree No. 27209). An order to the Commander in Chief of the Armed Forces, the decree declared a national emergency throughout Bolivia "in order to ensure a regular supply of liquid fuel to the people by protecting storage facilities and ensuring fuel shipments."
On October 12, the Commander in Chief of the Armed Forces, General Roberto Claros Flores, issued Directives 33/03 and 34/03. Both directives cited Supreme Decree No. 27209 for authority. See Defendants' Ex. 73 (Directive 33/03); Defendants' Ex. 74 (Directive 34/03). Directive 33/03 created a Joint Task Force comprised of all three branches of the Armed Forces-the army, air force, and navy-to "perform [DIT] operations as of [the date of the order], throughout the entire national territory to restore public order and the rule of law with the purpose of ensuring that the population is able to carry out its normal activities." Defendants' Ex. 73 (Directive 33/03 at 262-63). Directive 33/03 ordered that the Joint Task Force be established in six areas of the country,
Also on October 12, protesters amassed on roads in El Alto and La Paz. Two locations hold particular relevance to this case. The first is the area near the Senkata gas plant, in the south of El Alto; the second is the Rio Seco area, in the north of El Alto. Eyewitness reports indicate that members of the Bolivian military indiscriminately shot at unarmed civilians in both locations.
Senkata .-Protesters in Senkata gathered outside the local gas plant on the morning of October 12. Plaintiffs' Ex. I (Castaño Decl. ¶¶ 12-14). There is evidence that "the mobilized civilian population ... armed with Mauser rifles and dynamite" carried out "attacks in the Senkata area of El Alto on the tanker trucks transporting gasoline to the city of La Paz." Defendants' Ex. 11 (Three Prosecutors' Report at 479).17 There is also evidence, however, that after military tanks and trucks exited the gas plant, an officer began shooting at unarmed civilians without warning as the civilians fled in different directions. Plaintiffs' Ex. I (Castaño Decl. ¶¶ 16-17). Specifically, near Colegio Jose Manuel Pando , one officer fired a machine gun down an alley at civilians, including children, who were fleeing and trying to hide.
Decedent Lucio Santos Gandarillas Ayala ("Decedent Ayala") was shot and killed in the Senkata area on October 12. SMF ¶ 86; CSMF ¶¶ 86, 284. According to Plaintiff Sonia Espejo Villalobos, Decedent Ayala was traveling through Senkata to obtain cooking gas from his brother's house. Plaintiffs' Ex. K (Espejo Decl. ¶ 4); Plaintiffs Ex. HH (Espejo Dep. Tr. 31:3-13, 33:2-34:24). Decedent Ayala was wearing a red cap and a colorful yellow, red, and green jacket that day. Plaintiffs' Ex. K (Espejo Decl. ¶ 4); Plaintiffs' Ex. HH (Espejo Dep. Tr. 34:4-7).19 A witness to the military's targeting of civilians in Senkata saw a man wearing a yellow and green jacket get hit by a single gunshot in the vicinity of approximately a half dozen soldiers. Plaintiffs' Ex. I (Castano Decl. ¶¶ 18-19).
Rio Seco .-Protesters gathered in two areas of Rio Seco: the Ex Tranca and Rio Seco Bridge. See Plaintiffs' Ex. D (Apaza Morales Decl. ¶ 5); Plaintiffs' Ex. U (Zabala Decl. ¶¶ 10, 14). Flanked by trucks and tanks, two columns of armed soldiers advanced down Avenue Juan Pablo II toward the Río Seco Bridge. Plaintiffs' Ex. D (Apaza Morales Decl. ¶ 5); Plaintiffs' Ex. U (Zabala Decl. ¶¶ 10, 14). Soldiers were ordered to shoot at civilians in this area. Plaintiffs' Ex. P (Ortega Decl. ¶¶ 25-27). When a younger soldier refused to fire at civilians, he was shot by an officer in front of other soldiers.
*1290Three decedents in this case died in Rio Seco on October 12: Teodosia Teodosia Morales Mamani ("Decedent Teodosia Mamani"), Marcelino Carvajal Lucero ("Decedent Lucero"), and Roxana Apaza Cutipa ("Decedent Cutipa").
On Avenue Juan Pablo II near both the Ex Tranca and Rio Seco Bridge, a bullet came through the wall of the house where Decedent Teodosia Mamani, who was pregnant at the time, was sitting. SMF ¶¶ 101-02; CSMF ¶¶ 101-02, 289. She and her unborn child died two days later. SMF ¶ 102; CSMF ¶ 102. The military was seen firing at fleeing civilians in the area, and was outside of Decedent Teodosia Mamani's home when she was shot. See Plaintiffs Ex. D (Apaza Morales Decl. ¶¶ 9-22). Indeed, shortly before a bullet struck her, soldiers were pointing their guns at windows, including the windows of Decedent Teodosia Mamani's home.
Decedent Lucero lived at 93 Avenue Juan Pablo II. SMF ¶ 108; CSMF ¶ 108. He was shot and killed on October 12 when a bullet came through the window of his second story home. SMF ¶¶ 107-08; CSMF ¶¶ 107-08, 296. Soldiers were seen marching and shooting along Avenue Juan Pablo II the afternoon Decedent Lucero was shot. Plaintiffs' Ex. C (Apaza Cutipa Decl. ¶¶ 13-15).
On the evening of October 12, Decedent Cutipa was shot and killed on the rooftop terrace of her home. SMF ¶ 92; CSMF ¶¶ 92, 297. Curious about the sounds they heard outside, Decedent Cutipa, her younger brother Guzmán Apaza Cutipa, and their cousin's three children went up to the rooftop terrace. Plaintiffs' Ex. C (Apaza Cutipa Decl. ¶¶ 9-10). Only Decedent Cutipa was tall enough to see over the roofs terrace without standing on anything.
D. The Events of October 13, 2003 in La Paz
There is some evidence that after the events of October 12, Defendant Lozada sought a dialogue with certain of El Alto's community leaders. See Defendants' Ex. 55 (Meruvia Dep. Tr. 68:12-69:18); Defendants' Exs. 12-14 (letters from Defendant Lozada to community leaders explaining that no decision to export natural gas had been finalized and calling for dialogue). Nevertheless, the violence persisted into the next day in a manner consistent with the violence of September 20 and October 12. Specifically, there is evidence that on October 13, military regiments shot indiscriminately at unarmed civilians in the Southern Zone of La Paz, in both the Animas Valley and Ovejuyo areas.
On October 13, there was a roadblock on the Ánimas Valley road. Defendants' Ex. 50 (Huanca Quispe Dep. Tr. 32:6-33:9). This road is the only road from Palca21 to La Paz. Defendants' Ex. 47 (Mamani Aguilar Dr. Tr. 32:5-6). Leading up to October 13, soldiers had been positioned to guard *1291the road in Uni, in the Southern Zone of La Paz, so that nobody could block the road and protesters could not reach La Paz. Plaintiffs' Ex. M (Flores Limachi Decl. ¶¶ 4-6).22 On the morning of October 13, however, soldiers were ordered to move towards Chasquipampa-closer to La Paz on the Animas Valley road-because they were told that a large crowd of protesters had gathered there.
The soldiers were ordered to change from non-lethal to lethal ammunition and "shoot anything that moves."
As they ran low on ammunition, the soldiers retreated, continuing to shoot while they did so. Plaintiffs' Ex. M (Flores Limachi Decl. ¶ 15). After a helicopter arrived to replenish their ammunition, the soldiers were ordered to climb into the hills and continue shooting civilians, with their superiors instructing them: "whatever head you see, you need to shoot."
Two of Plaintiffs' relatives were killed on October 13 in the Animas Valley area at approximately the same time as the shooting described above: decedents Arturo Mamani Mamani ("Decedent Arturo Mamani") and Jacinto Bernabé Roque ("Decedent Roque"). See SMF ¶¶ 125, 133. Plaintiff Gonzalo Mamani Aguilar, Decedent Arturo Mamani's son, was present at the location where his father and Decedent Roque were shot. Plaintiffs' Ex. MM (Mamani Aguilar Dep. Tr. 90:20-91:3, 102:10-25). Mr. Mamani Aguilar had left his home on the morning of October 13 to tend to his family's land and, while on his way, he witnessed the military moving through the area.
As the soldiers left the Animas Valley in military trucks on October 13, they proceeded back to their barracks, through the locality of Ovejuyo. Plaintiffs' Ex. M (Flores Limachi Decl. ¶¶ 25-26). They had orders to shoot as they passed through Ovejuyo, including at civilians who were throwing rocks and bottles at the soldiers.
Decedent Márquez had left his home after lunch on October 13 to buy a Coca-Cola. Defendants' Ex. 50 (Huanca Quispe Dep. Tr. 38:21-25). Although Decedent Márquez and his daughter, Plaintiff Felicidad Rosa Huanca Quispe, heard gunfire earlier and although the stores on the main road in Ovejuyo were closed, Decedent Márquez went to try to buy a Coca-Cola from the store because "[h]e would always like to drink a cold one after lunch" and he believed the store's owner would sell him the beverage.
After the above described events of September and October 2003, Defendant Lozada resigned under protest on October 17, 2003, and his cabinet, which included Defendant Berzaín, was dissolved. SMF ¶ 21. Following the Bolivian Congress' acceptance of Defendant Lozada's resignation, he and Defendant Berzaín left Bolivia for the United States.
*1293E. Military Structure and Authority
Defendant Lozada, as the President of Bolivia, was the Captain General of the Armed Forces. SMF ¶ 154. The Bolivian Constitution in effect in 2003 provided: "The Armed Forces are subordinate to the President of the Republic and receive their orders administratively through the Minister of Defense, and in technical matters, from the Commander in Chief." Defendants' Ex. 10 (Bol. Const. art. 210). The Organic Law of the Armed Forces ("Organic Law") in effect in Bolivia in 2003 provides: "The Commander in Chief of the National Armed Force is the highest Command and Decision-making body of a technical/operating nature, for the permanent coordination and direction of the Armed Forces." Defendants' Ex. 36 (Organic Law art. 36). Plaintiffs assert that this decision-making body is referred to as the "Command in Chief." CSMF ¶ 159. Regardless of the terminology, the Organic Law is clear that this entity is composed of the Commander in Chief, the Office of the Chief of the General Staff, the Inspectorate General, the General Staff, and the Office of the Commander in Chief. Defendants' Ex. 36 (Organic Law art. 37). It is also undisputed that the Commander in Chief takes orders from the President.
III. PROCEDURAL BACKGROUND
This litigation began a decade ago and has a lengthy procedural history. Plaintiffs originally filed two separate suits on the same day in September 2007. Defendant Berzaín was sued in this Court, while Defendant Lozada was sued in the District of Maryland. The District of Maryland eventually transferred Defendant Lozada's case to this Court, where it was consolidated with Defendant Berzaín's case. Thereafter, Plaintiffs filed an amended complaint against both Defendants stating claims under the TVPA, the Alien Tort Statute ("ATS"), and state law. See DE 77.
Defendants moved for dismissal, and this Court disposed of that motion by way of two separate orders. The first order dismissed Plaintiffs' TVPA claims without prejudice for failure to exhaust their available Bolivian remedies. Mamani v. Berzaín,
This Court then granted Defendants' motion to certify Plaintiffs' ATS claims for interlocutory review by the Eleventh Circuit and stayed all proceedings pending the completion of that appeal. The Eleventh Circuit reversed with instructions to dismiss, reasoning that Plaintiffs had failed to state claims for extrajudicial killings and crimes against humanity under the ATS. Mamani v. Berzaín,
On remand, this Court lifted its stay and Plaintiffs filed a second amended complaint. See DE 174. That complaint raises claims for extrajudicial killings under ATS and the TVPA, crimes against humanity under the ATS, and wrongful death under state law. Defendants again moved to dismiss, and this Court granted that motion in part and denied it in part. Mamani v. Berzaín.
This Court granted Defendants' motion to certify its TVPA exhaustion and command responsibility rulings for interlocutory appeal and once again stayed all proceedings. The Eleventh Circuit affirmed. Mamani v. Berzaín,
Following the Eleventh Circuit's decision in Mamani V, this Court lifted its stay and set the case for trial. The discovery period has now closed, and Defendants seek summary judgment.
IV. STANDARD
The Court will grant summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,
After the movant has met its burden under Rule 56, the burden of production shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
As long as the nonmoving party has had ample opportunity to conduct discovery, it must come forward with affirmative evidence to support its claim. Anderson v. Liberty Lobby, Inc.,
*1295Walker v. Darby,
V. EVIDENTIARY DISPUTES
As noted throughout Section II, supra, the parties argue that certain documents or categories of documents cited to support or dispute a fact are inadmissible in evidence. The Court will consider these objections in turn. With respect to each document, the burden is of course on the proponent "to show that the material is admissible as presented or to explain the admissible form that is anticipated." 2010 Advisory Committee Notes on Fed. R. Civ. P. 56, 28 U.S.C. App., p. 922.
A. Three Prosecutors' Report
Defendants rely extensively on an investigatory report prepared by three Bolivian prosecutors who were appointed by Bolivia's Chief Prosecutor to investigate the events of September and October 2003. See Defendants' Ex. 11 (Three Prosecutors' Rep.). The Three Prosecutors' Report was issued in late July 2004 after a ten-month investigation. See Defendants' Ex. 102 (Ltr. from Three Pros. to Inter-American Commission on Human Rights at 523). Plaintiffs argue that the Three Prosecutors' Report is inadmissible hearsay because: (1) it is only a preliminary report that the Bolivian government ultimately declined to adopt; and (2) there is no "specific evidentiary basis for [the Report's] findings or the extent of its investigative efforts." CSMF ¶ 27. Defendants assert that the Three Prosecutors' Report is admissible under the public records exception to the hearsay rule. See Defendants' Reply Statement of Material Facts in Support of Their Motion for Summary Judgment ("Reply SMF") [DE 384] ¶ 27 (citing Fed. R. Evid. 803(8)(A)(ii)-(iii) ). The Court agrees.
The public records exception to the rule against hearsay provides that "[a] record or statement of a public office" is not excluded as hearsay:
(A) if it sets out:
(i) the office's activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Fed. R. Evid. 803(8).
Plaintiffs do not dispute that the Three Prosecutors' Report is a record of a public office that was prepared in conjunction with an authorized investigation. And while Plaintiffs are correct that Rule 803"makes no exception for tentative or interim reports subject to revision and review," CSMF ¶ 27 (quoting Toole v. McClintock,
Additionally, the fact that the Three Prosecutors' Report was subsequently disregarded *1296by different prosecutors who were appointed-seemingly for political reasons-to replace its authors, see Plaintiffs' Ex. SSS (Resolution No. 091/04, Revocation of Rejection Resolution 16/04), is no reason to find that the Report falls outside the Rule 803(8)(A)(iii) exception. Plaintiffs offer no support for the proposition that a final investigatory report is outside of this exception merely because subsequent litigation occurs. In any event, the Court does not accord great weight to the Bolivian government's decision to disregard the Three Prosecutors' Report, as that decision appears to have been politically motivated to support the popular view that members of Defendant Lozada's Military High Command should be tried for their role in the events of September and October 2003, despite the recommendation to the contrary contained in the Three Prosecutors' Report. See Defendants' Ex. 102 (Ltr. from Three Pros. to Inter-American Commission on Human Rights at 524-25).
Lastly, Plaintiffs are simply incorrect that the Three Prosecutors' Report fails to explain the evidentiary basis for its conclusions or the investigative efforts involved in the production of the Report. The Report describes how its conclusions are the product of, inter alia , field work performed at over 17 locations, witness interviews, the collection of physical evidence and written statements, and ballistics analyses. Defendants' Ex. 11 (Three Prosecutors' Rep. at 468-473). In sum, the Court finds that the Three Prosecutors' Report falls under the Rule 803(8)(A)(iii) exception and that Plaintiffs have failed to meet their burden of showing that it is not trustworthy. Not only do Plaintiffs fail to offer any valid reasons as to why the Three Prosecutors' Report is untrustworthy, but the fact that the prosecutors affirmed their findings, even after they were subject to "all manner of intimidation, threats, insults, and attacks on [their] dignity and [their] lives" for "fail[ing] to present the conclusions that would have been politically expedient for the government," suggests that the Report is the product of an impartial investigation and sufficiently trustworthy. Defendants' Ex. 102 (Ltr. from Three Pros. to Inter-American Commission on Human Rights at 252-256).
B. Military and other Bolivian Government Reports
Defendants also rely extensively on military and other Bolivian government reports. See Defendants' Ex. 15 (Police Intelligence Rep.); Defendants' Ex. 32 (Social Conflict Field Diary); Defendants' Ex. 33 (Military Intelligence Rep.); Defendants' Ex. 35 (Police Rep.). Plaintiffs argue that these documents are hearsay and may not be considered. CSMF ¶ 45. Defendants assert that the documents are admissible under either the Rule 803(6) business records exception, the Rule 803(8) public records exception, or the Rule 807 residual exception. Reply SMF ¶¶ 45, 83, 120. As discussed below, the Court finds that these military and police reports are hearsay and are not admissible under the exceptions listed in either Rule 803 or 807.
First, Defendants half-hearted argument that the military reports-Defendants' Exhibits 32 and 33-are admissible under the Rule 803(6) business records exception warrants little discussion. Rule 803(6) permits the introduction of certain business records if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the record. Fed. R. Evid. 803(6). But Rule 803(6) requires that a proper foundation be laid for the admission of business records. See Fed. R. Evid. 803(6)(D) ; United States v. Garnett,
As noted above, under Rule 803(8), a record or statement of a public office is not excluded as hearsay if it sets out either "a matter observed while under a legal duty to report" or "factual findings from a legally authorized investigation" and the opponent does not show that the record or statement, or other circumstances, indicate a lack of trustworthiness. In contrast with the Three Prosecutors' Report discussed above, none of the military and police reports relied upon by Defendants appear to set out "factual findings from a legally authorized investigation" as required for admissibility under Rule 803(8)(A)(iii). Defendants argue, however, that the authors of these reports were legally bound to report the matters described therein, and that the reports are therefore admissible under Rule 803(8)(A)(ii). But even assuming the existence of a legal duty to report, to fall under Rule 803(8), the matters observed while under that legal duty must be " 'based upon the knowledge or observations of the preparer of the report,' as opposed to a mere collection of statements from a witness." United Techs. Corp. v. Mazer,
The military and police reports offered by Defendants do not fall under the Rule 803(8) public records exception because there is no indication that the events described in these reports are based on the personal observations of the preparers of the reports, rather, "the only conceivable explanation" for how the information was obtained was by listening to the hearsay statements of third-parties. See
The other police report relied upon by Defendants (Defendants' Ex. 35) fares no better. Like the Police Intelligence Report, it is clearly based not on the preparer's personal observations, but on the hearsay statements of others. It also describes an encounter between the military-not the police-and civilians, and is expressly based upon the statements of third-party witnesses. See Defendants' Ex. 35 (Police Rep. at 9747) (noting that the report is based in part on "a statement made by Mr. Agustín Sirpa Ortiz, (witness)," that "it was reported that ... Captain Belmonte declared ...," and noting the existence of statements from five additional witnesses).
Finally, the military reports-Defendants' Exhibit 32 (Social Conflict Field Diary) and Defendants' Exhibit 33 (Military Intelligence Rep.)-do not fall under the Rule 803(8) public records exception either. The "Social Conflict Field Diary" describes in detail-over the course of approximately forty pages-military operations from September 11, 2003 to October 21, 2003 in a multitude of different locations in Bolivia, yet it is only signed by one person: Brigadier General Miguel Angel Vidaurre Noriega. See Defendants' Ex. 32 (Social Conflict Field Diary at 5354). It is unclear whether Brigadier General Noriega is the sole preparer of the Social Conflict Field Diary, but regardless, the observations contained therein could not conceivably have been obtained without the statements of third-parties who were actually on the ground in the numerous encounters described. Similarly, the Military Intelligence Report (Defendants' Ex. 33) is only signed by one person and describes a number of clashes in different areas of Bolivia in October 2003. There is no attribution as to the source of any of the information described in the Military Intelligence Report, but again, it is safe to say that the this information is not based on the knowledge or observations of the preparer of the report.
As indicated above, Defendants argue that if the Court refuses to admit the military and police reports under Rules 803(6) or 803(8), the Court should admit these exhibits under the Rule 807 residual exception. Rule 807 provides that, even if a statement fails to fall under an exception in Rule 803 or 804, it is not excluded by the rule against hearsay if:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
Fed. R. Evid. 807(a). "Congress intended the residual hearsay exception to be used very rarely, and only in exceptional circumstances, and it applies only when certain exceptional guarantees of trustworthiness exist and when high degrees of probativeness and necessity are present." United Techs.,
Finally, Defendants argue that if the Court refuses to admit the military and police records under a hearsay exception, it should consider these reports for the non-hearsay purpose of the effect they had on Defendant Lozada and his decision to order military involvement in September and October 2003. Reply SMF ¶ 45. The Court agrees that this is a potentially proper non-hearsay purpose for admission of the military and police reports. But at least at the summary judgment stage, the Court cannot consider the military and police reports for this purpose because there is no evidence in the record showing that Defendant Lozada specifically relied upon any of the military and police reports being offered by Defendants prior to making any of the decisions at issue in these cases.
C. U.S. State Department Cables
Plaintiffs object to Defendants' reliance on five U.S. State Department cables (Defendants' Exs. 1-5) and argue that the cables are hearsay. CSMF ¶ 38. Defendants counter that the cables are admissible under either the Rule 803(6) business records exception, the Rule 803(8) public records exception, or the Rule 807 residual exception. Reply SMF ¶ 38. For many of the same reasons discussed above in connection with the Bolivian military and police reports, the Court finds that the State Department cables are hearsay and are not admissible under the exceptions listed in Rules 803 or 807.
Starting with the business records exception, Defendants have failed to lay a foundation for admission of the State Department cables under Rule 803(6). See Section V.B., supra, The cables also do not fall under the Rule 803(8) public records exception because, like the police and military reports, they are clearly based not on the preparer's personal observations, but on the statements of others. For instance, with respect to the shootings in Warisata in September 2003, the cables do not appear to relay what an embassy official actually observed on the ground, but they simply report the Bolivian military's position-that the military convoy was ambushed-and then note that the "Campesino version is that the security forces fire[d] first at llabaya, outside Warisata ...." Defendants Ex. 1 (State Department Cable at 27). Many of the cables are also based on media reports, which are obviously themselves hearsay. See, e.g., Defendants Ex. 2 (State Department Cable at 32-34). While the Court does not rule out the possibility that some portions of the State Department cables are based on the observations of the (unidentified) preparer,29 these statements are immaterial to the Court's analysis and are substantially *1300duplicative of other evidence that the Court has considered, including, inter alia , the Three Prosecutors' Report.
Finally, the statements contained in the State Department cables may not be admitted under the Rule 807 residual exception, albeit for a different reason than the Bolivian military and police records fail to qualify for admission under Rule 807. Specifically, the Court finds that while the cables do bear exceptional guarantees of trustworthiness, they still may not be admitted under the residual exception because they are not "more probative on the point for which [they are] offered than any other evidence that the [Defendants] can obtain through reasonable efforts." Fed. R. Evid. 807(a)(3). With respect to trustworthiness, the Court finds it sufficient that the cables are signed by the then-U.S. Ambassador to Bolivia and identified as Department of State materials, as the Court agrees with Defendants that the State Department had no incentive to do anything but report the situation in Bolivia fairly and accurately.
However, as noted above, Rule 807 still requires that, in addition to a showing of trustworthiness, the proponent show that the document offered is more probative than any other evidence on the point for which it is offered than the proponent can obtain through reasonable efforts. Defendants only argue that this is true with respect to the State Department cables "because the U.S. government denied Defendants' request to depose the Ambassador." Reply SMF ¶ 38. But Defendants' inability to depose the Ambassador does not preclude Defendants from attempting to obtain other evidence concerning the events described in the State Department cables, and indeed, Defendants have done so in many cases. Moreover, Defendants have failed to show an inability to reasonably obtain other evidence with respect to any specific point for which they offer a State Department cable, though the Court does not rule out the possibility that Defendants may be able to make such a showing at trial.
D. Hayden's Report
The Court briefly notes that Defendants have moved to exclude the testimony of a number of Plaintiffs' experts, including, most relevant to the instant Motion, Phillip P. Hayden. See DE 337. Mr. Hayden reviewed ballistics evidence of the shootings at issue in these cases, conducted witness interviews and site visits, and opines that the decedents in these cases were intentionally shot and killed by members of the Bolivian military. See DE 337-4 (Report of Phillip P. Hayden). Defendants contend that Mr. Hayden's testimony is inadmissible, and even if it were admissible, it "cannot alone defeat summary judgment." DE 342-1 at 23. The Court will address Defendants' motion to exclude Mr. Hayden's testimony in a separate order, because as explained below, Plaintiffs have put forth sufficient evidence to raise genuine disputes of material fact even without consideration of Mr. Hayden's testimony.
VI. DISCUSSION
The Court will now address the merits of Defendants' summary judgment Motion. As noted above, Defendants make four main challenges to Plaintiffs' claims. First, Defendants assert that, based on the evidence in the record, a reasonable jury could not conclude that any of the eight decedents' deaths meet the TVPA's definition of an extrajudicial killing. Second, Defendants say that there is no evidence by which they could be held indirectly liable for decedents' deaths. Third, Defendants raise an assortment of challenges to the legal viability of Plaintiffs' wrongful death claims. And fourth, Defendants assert that the claims of Plaintiffs Sonia Espejo Villalobos and Gonzalo Mamani Aguilar contain *1301various deficiencies. The Court will consider each point in turn.
A. Extrajudicial Killings
1. Legal Principals
The TVPA provides:
An individual who, under actual or apparent authority, or color of foreign nation ... subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.
TVPA § 2(a)(2). The statute goes on to define the term "extrajudicial killing" to mean "a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples." Id. § 3(a). Excluded from the statute's coverage is "any such killing that, under international law, is lawfully carried out under the authority of a foreign nation."Id.
A deliberated killing, the Eleventh Circuit explained in Mamani III, is one that is "undertaken with studied consideration and purpose."
2. Application
With the principles set out above in view, the Court now considers whether a reasonable jury could conclude that decedents were victims of extrajudicial killings, as that term is defined by the TVPA. Defendants argue that the record evidence does not support a finding that each of the deaths at issue here were deliberated because there is no evidence of the specific individual who shot each decedent, much less evidence concerning the shooter's intent. Defendants also contend that TVPA liability does not attach because each shooting is compatible with an accidental or negligent shooting. Plaintiffs dispute that evidence identifying the shooter and his state of mind is required, and assert that the deliberated nature of each killing is shown by the evidence that the deaths at issue resulted from implementation of Defendants' plan to use military force to kill civilians. Plaintiffs also say that the circumstances of each death at least raise a genuine dispute about whether each killing was intentional, as opposed to accidental or negligent.
The Court concludes that Plaintiffs have presented sufficient evidence to raise a jury question as to whether decedents' deaths were extrajudicial killings under the TVPA. First, a reasonable jury, considering the evidence of Defendants' plan to kill civilians to quash public opposition to their policies, could find that decedents' deaths were deliberated because they were the expected and desired outcome of this plan. Given the totality of the evidence in this case, this is not, as Defendants *1302contend, a speculative inference. Rather, it is a reasonable inference that can be drawn from the evidence of: (1) changes in Bolivian military doctrine during Defendant Lozada's administration to define protesters as subversives who could be targeted with military force; (2) a pattern of soldiers being ordered to shoot unarmed civilians in multiple different locations, including each location where decedents were killed, on multiple different dates; (3) a pattern of soldiers shooting indiscriminately at civilians at times when witnesses saw no armed protesters or anything indicating that the soldiers were firing defensively; (4) Defendants' repeated refusal to seriously commit to achieving peaceful, negotiated solutions to protests; and (5) consistent with Defendants' plan, the utilization of troops from eastern Bolivia. From this evidence, the Court must, at the summary judgment stage, draw all reasonable inferences in the light most favorable to Plaintiffs. And in so doing, the Court finds that there is a genuine dispute as to whether the deaths at issue here resulted from the implementation of Defendants' plan.
The Court is satisfied that a showing that decedents' deaths resulted from implementation of Defendants' plan is sufficient to show that these were deliberated killings under the TVPA. Plaintiffs need not, as Defendants argue, identify the specific soldier who fired each lethal shot and introduce evidence regarding what that soldier was "doing, seeing, hearing, ... processing," or thinking at the time of the shooting. See DE 342-1 at 18. As Plaintiffs note, superior officers are consistently held liable under the TVPA for the acts of their subordinates, whether the subordinates can be identified or not. See, e.g., Hilao v. Estate of Marcos,
To be sure, Plaintiffs must show that decedents were intentionally killed by the Bolivian military. But that intent need not necessarily be shown with evidence regarding each individual shooter's state of mind. Rather, it can be inferred by proof that decedents' deaths resulted from the implementation of Defendants' plan to use military force to kill unarmed civilians. This approach is consistent with cases recognizing that individualized targeting is not required to make out a claim under the TVPA's definition of extrajudicial killing. See, e.g., Owens v. Republic of Sudan,
*1303Having found the existence of a genuine dispute regarding whether the deaths at issue here were deliberated, the Court turns next to whether Plaintiffs have presented sufficient evidence to raise jury questions as to: (1) whether decedents were killed by a member of the Bolivian military; and (2) whether the killings were incompatible with accidental or negligent shootings, "precipitate shootings during an ongoing civil uprising," and shootings based on "individual motivations ... not linked to defendants." Mamani III,
As an initial matter, the Court rejects Defendants' contention that "Plaintiffs' inability to produce sufficient evidence to show that only military in the area [where decedents were killed] were shooting should end the inquiry." DE 342-1 at 18. In order for Plaintiffs to show that decedents were intentionally killed by the military, Plaintiffs need not necessarily show that only the military was shooting in the areas where decedents were killed. Even though there is evidence in this case that, in certain of the areas where decedents were killed, there was an isolated shot at the military or, in other locations, a more substantial clash between the military and armed protesters, this does not foreclose a jury from reasonably finding that decedents were intentionally killed by the military-as opposed to by an armed protester, a member of the military who believed he was shooting at an armed protester, or a member of the military who was shooting at an armed protester but accidentally or negligently struck one of the decedents. A jury could reasonably make this determination by weighing the evidence of, on the one hand, the proximity of decedents' deaths to any armed conflict and the nature of same and, on the other hand, the evidence of the location and actions of troops in relation to where decedents were shot. For instance, a jury could reasonably find, by a preponderance of the evidence, that a decedent was intentionally killed by the military-notwithstanding evidence showing an isolated shot at the military a significant distance away from the killing and at an earlier point in time-because of evidence that troops were ordered to shoot, and did shoot, indiscriminately at civilians in the immediate vicinity of the decedent at the time of his or her death and an absence of evidence of armed protesters in the area.
Sufficient evidence to make such a finding exists with respect to each decedent. For instance, while there is evidence that the military convoy in Warisata was fired upon from the hills on September 20, 2003, there is also evidence that troops indiscriminately shot at civilians, into houses, and at windows in this area when they were no longer facing any armed opposition. A jury could certainly consider this evidence, the evidence of the distance between Decedent Marlene Mamani's home and the location of the earlier clash between the military and armed protesters, and the evidence of troop movement outside of Decedent Marlene Mamani's home at the time of her death, and reasonably conclude that she was intentionally killed by the Bolivian military while looking out the window of her home.
Similarly, with respect to the decedents killed in El Alto on October 12, 2003, while there is some evidence of violent acts committed by protesters on this day, there is also evidence that troops indiscriminately shot at unarmed civilians-and were not being fired upon by armed protesters when doing so-in the locations where Decedent Ayala, Decedent Teodosia Mamani, Decedent Lucero, and Decedent Cutipa *1304were killed. Additionally, for Decedent Ayala, a jury could also find that he was intentionally killed by the military based on the evidence that a witness saw a man dressed similar to Decedent Ayala shot near several soldiers.32 And although Decedent Teodosia Mamani was shot through the wall of her home, a jury could still find that this was not an accidental or negligent shooting because it resulted from the implementation of Defendants' plan to kill civilians. There is evidence that this plan was implemented by soldiers shooting indiscriminately in areas with high concentrations of civilians, and a jury could reasonably find that the death of a civilian due to a shot fired through the wall of a home was the expected and desired outcome of this plan.
Finally, there is also sufficient evidence that the decedents killed on October 13, 2003 in the Southern Zone of La Paz-Decedent Arturo Mamani, Decedent Roque, and Decedent Marquez-were intentionally killed by the Bolivian military. Plaintiff Gonzalo Mamani Aguilar was present at the location where his father, Decedent Arturo Mamani, and Decedent Roque were shot. Mr. Mamani Aguilar testified that the military was firing towards him and shooting in different directions when Decedent Arturo Mamani and Decedent Roque were shot and killed. While Defendants have submitted evidence that a soldier was shot on October 13 in a different location, there is no evidence that there were armed protesters in the location where Decedent Arturo Mamani and Decedent Roque were at the time they were shot. The same is true with respect to the shooting of Decedent Marquez in Ovejuyo on October 13. Defendants' evidence of violence in other locations on this day does not create a genuine dispute that soldiers were indiscriminately shooting at unarmed civilians in Ovejuyo. Moreover, an eyewitness places several soldiers-shooting "in all directions"-in the immediate vicinity of Decedent Marquez when he was shot, and Defendants have introduced no evidence of armed protesters in Ovejuyo at this time.
In sum, based on the evidence regarding the facts and circumstances of each shooting, a jury could reasonably conclude that each decedent was killed by a member of the Bolivian military and that the shootings were not accidental or negligent, "precipitate shootings during an ongoing civil uprising," or shootings based on "individual motivations ... not linked to defendants." Mamani III,
B. Defendants' Secondary Liability
It is firmly established that the TVPA "contemplates liability against officers who do not personally execute the torture or extrajudicial killing." Mohamad v. Palestinian Auth.,
1. Command Responsibility
The TVPA permits suits "against commanders under the international law doctrine of command responsibility." Ford ex rel. Estate of Ford v. Garcia,
(1) the existence of a superior-subordinate relationship between the commander and the perpetrator of the crime; (2) that the commander knew or should have known, owing to the circumstances at the time, that his subordinates had committed, were committing, or planned to commit acts violative of the law of war; and (3) that the commander failed to prevent the commission of the crimes, or failed to punish the subordinates after the commission of the crimes.
To establish a superior-subordinate relationship, Plaintiffs must demonstrate "that Defendants had 'effective control' over the Bolivian soldiers" who killed decedents.
*1306Mamani IV,
Applying these principles, the Court concludes that a reasonable jury could find that Defendants had both de jure and de facto authority to effectively control the troops that are alleged to have shot and killed Plaintiffs' decedents.
a. Defendant Lozada
As President, Defendant Lozada was Captain General of the Armed Forces. The Bolivian Constitution in effect in 2003 provided that "[t]he Armed Forces are subordinate to the President of the Republic and receive their orders administratively through the Minister of Defense, and in technical matters, from the Commander in Chief." Defendants' Ex. 10 (Bol. Const. art. 210) ). The Organic Law vested in the President the power to address domestic unrest. See Defendants' Ex. 36 (Organic Law art. 8). Operational coordination of the military was accomplished by the Commander in Chief, an entity defined by the Organic Law as "the highest Command and Decision-making body of a technical/operating nature, for the permanent coordination and direction of the Armed Forces."
According to Defendants, the Bolivian Constitution and the Organic Law's textual commitments of power to the President were all form but little substance. The President, Defendants say, could only issue general orders. Because the operationalization of the President's orders could only be achieved by the Commander in Chief, it follows (as Defendants would have it) that the President lacked effective control over the soldiers on the ground during the events at issue in these cases.
The Court disagrees. A reasonable jury could conclude, based on Defendant Lozada's legal powers as President and the *1307manner in which he exercised those powers, that he had effective control over the Armed Forces. As detailed above, the orders issued by Defendant Lozada to the Commander in Chief-namely, the September 20, 2003 decree directing the military into Warisata and Supreme Decree 27209 issued on September 11, 2003-led directly to orders by the Commander in Chief-specifically, Directive 27/03 on September 20 and Directives 33/03 and 34/03 on October 12-that in turn produced the military action resulting in the alleged extrajudicial killings of Plaintiffs' decedents. This action aligned closely with Defendants' previously-formulated plan to violently suppress opposition to their political agenda. Thus, especially when considered in connection with the other evidence in this case suggesting that Defendants deliberately put their plan in motion once in power, including, inter alia , the changes in military policy relating to civil disobedience (i.e. , the "Manual on Use of Force" and the Republic Plan), a reasonable inference can be drawn that Defendant Lozada used his authority as President to direct the Armed Forces to implement the military operations that led to decedents' deaths. And because such an inference can made with regard to Defendant Lozada's orders, it follows that he could have taken similar actions to prevent the alleged criminal conduct.
While Defendant Lozada's ability to prevent the military's criminal conduct is enough on its own to establish a superior-subordinate relationship,36 the Court is of the view that Plaintiffs have also created a genuine dispute of material fact as to whether Defendant Lozada had the ability to punish guilty troops. Defendants insist that "any investigation or prosecution of guilty troops would have occurred through the military justice process, or in civilian courts, at the request of the Office of the Chief Prosecutor, i.e. , the Attorney General, which is independent from the executive branch." DE 342-1 at 28. But Defendants cite no Bolivian legal sources for this proposition. Instead, they point to a May 2003 report by the Organization of American States and a 2003 U.S. State Department report on human rights practices in Bolivia. See SMF ¶ 184 (citing Defendants' Ex. 7 (OAS Rep. at 90) and Defendants' Ex. 16 (U.S. State Dep't Rep. on Human Rights Practices-2003 at 3432, 3425). Neither report says anything about the President's independence from the Office of the Chief Prosecutor. Plaintiffs, on the other hand, note that Defendant Lozada testified in his deposition that, on several occasions in September and October 2003, he appointed special prosecutors to investigate reports of unarmed civilians being shot by the military.37
b. Defendant Berzaín
As noted above, under the Bolivian Constitution in force in 2003, the Armed Forces "receive[d] their orders administratively through the Minister of Defense." Defendants' Ex. 10 (Bol. Const. art. 210).
*1308Additionally, the Organic Law vested the Minister of Defense with authority to "plan, organize, direct and supervise Civil Defense in the National Territory." Defendants' Ex. 36 (Organic Law, Article 22). Defendants describe the Minister of Defense as little more than an administrative figurehead, lacking any meaningful authority-legal or otherwise-to control military operations.
The record evidence tells a different story. As detailed above, Defendant Berzaín played a hands-on role in the planning and implementation of the events of September 20, 2003 and October 12 and 13, 2003. With regard to the September 20 events, it was Defendant Berzaín who-having traveled to Sorata with Defendant Lozada's authorization-rejected a compromise with community leaders in favor of a military alternative, saying that he would remove the tourists from Sorata "the good way or the bad way." Plaintiffs' Ex. N (Garcia Decl. ¶¶ 9-10); Plaintiffs' Ex. RR (Lozada Dep. Tr. 216:7-18); Plaintiffs' Ex. W (Berzaín Dep. Tr. 122:11-13). Defendant Berzaín then ordered military officers to look for bus drivers to transport the tourists. Id. ¶ 15. Later, as the military convoy escorted the tourists from Sorata to La Paz, by way of Warisata, Defendant Berzaín spoke on the phone with Defendant Lozada just before Defendant Lozada issued an order to the acting Commander in Chief of the Armed Forces directing the use of "necessary force" to restore order in Warisata. See [redacted]
And with regard to the events of October 12 and 13, Defendant Berzaín played a key role in organizing the operation to use the military to transport gas from the Senkata gas plant to La Paz. On the evening of October 10, Defendant Berzaín held a meeting at the Ministry of Defense with top military officers and leaders from the La Paz Gas Stations Association. Plaintiffs' Ex. O (Loza Decl. ¶¶ 12-13, 15-16). It was at that meeting that Defendant Berzaín not only nodded in response to-and, a jury could reasonably conclude, approved-a general's proposal to use the military to transport gasoline, but also was present as the operation was planned. Id. ¶ 22. And the following day, Supreme Decree 27209 directed Defendant Berzaín to "establish the mechanisms necessary" for the Armed Forces to execute its mission to transport gas from Senkata to La Paz. Defendants' Ex. 6 (Supreme Decree No. 27209 at 71).
Although Defendant Berzaín's actions are open to some interpretation, Plaintiffs have adduced sufficient evidence by which a reasonable jury could conclude that Defendant Berzaín exercised such control over the Bolivian Armed Forces that he was complicit in the extrajudicial killings of decedents. Defendant Berzaín's role in planning and executing the operations of September 20 and October 12 and 13 indicate that he could have prevented the actions of any guilty troops.38
* * *
That a reasonably jury could hold Defendants liable under the doctrine of command responsibility will not result in "strict liability akin to respondeat superior for national leaders at the top of the long chain of command in a case like this one." Mamani III,
Defendants can be held indirectly liable by means of conspiracy if Plaintiffs establish the following three elements:
(1) two or more persons agreed to commit a wrongful act, (2) [Defendants] joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it, and (3) one or more of the violations was committed by someone who was a member of the conspiracy and acted in furtherance of the conspiracy.
Cabello v. Fernández-Larios,
3. Agency
Agency law is recognized as an available theory of indirect liability in TVPA cases. See Doe,
A reasonable jury could find that, based on Defendants' positions at the top of the Bolivian military hierarchy, Defendants' longstanding plan to kill civilians, and the orders given by Bolivian military officers to kill civilians, decedents' deaths at the hands of the Bolivian military were committed by soldiers who had consented to an agency relationship with Defendants. Defendants respond that consent was lacking because the identity of the perpetrators of decedents' deaths remains a mystery. But as the Court explained above, a reasonable jury could conclude that decedents were deliberately killed by members of the Bolivian military who were implementing Defendants' plan.
The Court further holds that the record contains sufficient evidence of control. This conclusion follows a fortiori from the Court's effective control analysis under the command responsibility doctrine. Because a reasonable jury could find that Defendants possessed effective control under that doctrine, a similar finding of substantial control for purposes of common-law agency could also be made.40 Defendants *1311concede as much in their briefing. See DE 342-1 at 30; DE 384 at 22.
C. State-Law Claims
Florida resolves conflict-of-laws questions according to the "most significant relationship" test outlined in the Restatement (Second) of Conflict of Laws. See Michel v. NYP Holdings, Inc.,
Defendants assert that a number of legal barriers foreclose Plaintiffs' wrongful death claims. First, Defendants say that Plaintiffs' claims are preempted by the TVPA. Second, Defendants assert that Bolivian law does not recognize indirect liability in this context. And third, Defendants argue that even if Plaintiffs' wrongful death claims were otherwise viable, they are precluded due to the criminal charges pending in Bolivia at the time of the inception of this action.
1. Preemption
a. Field Preemption
The Constitution's Supremacy Clause provides that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art VI, cl. 2. This fundamental principle permits Congress to preempt state law. See Crosby v. Nat'l Foreign Trade Council,
*1312Field preemption reflects a congressional judgment "to foreclose any state regulation in the area, irrespective of whether state law is consistent or inconsistent with federal standards." Oneok, Inc. v. Learjet, Inc., --- U.S. ----,
Defendants contend that, in passing the TVPA, Congress sought to occupy the field of civil remedies for foreign state-sponsored torture and extrajudicial killings. Of course, "Congress appeared well aware of the limited nature of the cause of action it established in the [TVPA]." Mohamad,
b. Foreign Affairs Doctrine
The foreign affairs doctrine is based on the premise that "at some point an exercise of state power that touches on foreign relations must yield to the National Government's policy, given the 'concern for uniformity in this country's dealings with foreign nations' that animated the Constitution's allocation of the foreign relations power to the National Government in the first place." American Ins. Ass'n v. Garamendi,
As an initial matter, application of the foreign affairs doctrine is entirely inapt in these cases, as the Court is applying Bolivian law, not Florida law, to Plaintiffs' wrongful death claims. See Doe v. Exxon Mobil Corp.,
Even if a conflict could exist-even if Florida's interest in entertaining a transitory tort under Bolivian law could somehow implicate foreign policy concerns-the conflict with U.S. foreign policy interests would not be strong enough for Plaintiffs' wrongful death claims to be preempted. Early in this litigation, the Court invited the Departments of Justice and State to file briefs expressing the views of the United States on "the interpretation and application of the Alien Tort Statute and the Torture Victim Protection Act, and the possible foreign policy repercussions" of these cases. DE 60. On October 21, 2008, the United States filed a Notice informing the Court that it took "no position on those issues at this time," but that it would "continue to monitor this litigation." DE 107 ¶¶ 3-4. Attached to the Notice was a letter from the Bolivian Ministry of Foreign Affairs and Culture notifying the Secretary of State that "the fact that a Court of the United States of America is adjudicating a complaint against [Defendant Lozada and Defendant Berzaín] does not cause any disruption or change in the diplomatic relations between Bolivia and the United States of America." DE 107-1 at 4. The United States and the Bolivian government have not, to date, indicated any change in their respective positions on this litigation. Given those positions, even assuming the foreign affairs doctrine applied here, the Court concludes that Plaintiffs' wrongful death suits are not preempted.42
2. Indirect Liability Under Bolivian Law
Defendants argue that Plaintiffs' wrongful death claims fail because Bolivian law does not recognize a civil claim for those *1314injured by criminal conduct based on indirect liability. Specifically, Defendants assert that, while the Bolivian Penal Code imposes criminal liability upon "mediate perpetrators"-"person[s] who use[ ] another as an instrument, i.e. , a person who uses an agent to commit an aspect of the crime"-mediate perpetrator liability is not available for Bolivian civil liability. DE 342-1 at 33.
This argument warrants little discussion. It is based solely on the fact that one article of the Bolivian Penal Code uses the term "perpetrator" but does not also specifically mention "mediate perpetrators" as well. See Defendants' Ex. 75 (Bol. Penal Code art. 273) ("A person who, with the intent of causing bodily damage or damage to health, causes the death of a person unintended by the perpetrator but which could have been foreseen shall be punished by imprisonment of from THREE to EIGHT years."). But Defendants concede that, under Bolivian law, the criminal code informs civil liability. And Article 14 of the Bolivian Code of Criminal Procedure establishes that a civil action arises "from the commission of every crime ." Plaintiffs' Ex. AAA (Bol. Code Crim. P. art. 14 (emphasis added) ); see also Defendants' Ex. 75 (Bol. Penal Code art. 87) ("Any person criminally liable is also civilly liable and is obligated to pay reparations for the material and non-material damages caused by the crime."). Moreover, the Bolivian Code of Criminal Procedure specifies that a civil action "for the reparations or compensation for damages and injuries caused by [a] crime, may be initiated by the injured party, against the perpetrator and the participants of the crime." Plaintiffs' Ex. AAA (Bol. Code Crim. P. art. 36 (emphasis added) ). Based on this authority, the Court concludes that Defendants have failed to show that Bolivian law does not recognize a civil claim based on indirect liability.
3. Preclusion Based on Pendency of Criminal Charges
Defendants also assert that Plaintiffs' wrongful death claims are precluded because when Defendants brought these claims in 2007, a criminal case-the Trial of Responsibilities-was pending against Defendants in Bolivia.43 In support, Defendants cite to Article 37 of Bolivia's Code of Criminal Procedure, which provides that "[a] civil action can be pursued in the criminal proceedings under special rules or may be filed with the civil courts, but cannot be pursued simultaneously in both jurisdictions." Defendants' Ex. 76 (Bol. Code Crim. P. art. 37). Defendants further note that Bolivian law prohibits the resolution of civil cases based on criminal conduct "while the pending criminal proceedings have not been resolved," except in certain enumerated circumstances, including when "the criminal proceedings have been ordered suspended due to default."
First, Article 37 of the Bolivian Code of Criminal Procedure appears to solely prohibit litigants from pursuing civil claims simultaneously "in the criminal proceeding under special rules" and in the civil courts.
D. Individual Deficiencies
Defendants take the position that various individual deficiencies preclude the claims of Plaintiffs Sonia Espejo Villalobos and Gonzalo Mamani Aguilar.
1. Sonia Espejo Villalobos
Defendants contend that Plaintiff Sonia Espejo Villalobos is not a proper plaintiff with respect to either her TVPA or wrongful death claims. In order to obtain relief for an extrajudicial killing pursuant to the TVPA, a plaintiff must be: (1) a legal representative or any person who may be a claimant in an action for wrongful death (2) of a victim of an extrajudicial killing (3) that was committed by an individual acting under actual or apparent authority, or color of law, of any foreign nation. Baloco ex rel. Tapia v. Drummond Co.,
Defendants argue that Ms. Espejo is not a proper representative of Mr. Gandarilla because they were not formally married at the time of Mr. Gandarilla's death, but had a common-law union. Under Florida law, the only ground upon which Ms. Espejo could serve as the representative of Mr. Gandarilla is as his spouse. See
At the time of Decedent Gandarilla's death in 2003, the Bolivian Family Code recognized that "free conjugal or de facto unions that are stable and singular produce effects similar to marriage, as much in the personal relationships as in the hereditary relationships of cohabiting partners." Plaintiffs' Ex. OOO (Verástegiu Rpt. ¶ 33 (quoting Law 996 art. 159) ). The Bolivian Constitution of 2009 likewise provides: "Free or de facto unions between a woman and a man which meet the requirements of stability and singularity and for which there is no legal impediment shall produce the same legal effects as civil marriage ...." Plaintiffs' Ex. WW (Bol. Const. art. 63). Plaintiffs point to decisions of *1316Bolivia's highest court, the Plurinational Constitutional Tribunal, that appear to retroactively apply the 2009 Bolivian Constitution's definition of marriage. See DE 375 at 42 & nn.27-28.
The Court need not definitively resolve the status of Ms. Espejo's common-law marriage to Decedent Gandarilla in order to find that she is a proper plaintiff in these cases. The Bolivian Code of Criminal Procedure considers a cohabitating partner as both an heir and a victim in her own right who may bring a civil action for the death of a decedent. See Plaintiffs' Ex. OOO (Verástegiu Rpt. ¶¶ 27, 30-31 (citing Bol. Code Crim. Proc. arts. 76, 92) ); id. at ¶¶ 33, 37-40 (discussing the inheritance rights of cohabitating partners). Eleventh Circuit precedent instructs that, "where state law would provide no remedy [to a TVPA plaintiff], a court may apply the foreign law that would recognize the plaintiffs claim." Baloco,
2. Exhaustion
Section 2(a) of the TVPA provides that "[a] court shall decline to hear a [TVPA] claim ... if the claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the claim occurred." The statute's exhaustion requirement is an affirmative defense that Defendants bear a "substantial" burden to prove. Jean v. Dorelien,
As relevant here, Bolivian Law No. 3955 awarded a lump sum benefit "to the heirs who are relatives up to the first degree of consanguinity (children, spouse and parents) of those who died as a consequence of the events of February, September and October of 2003." Plaintiffs' Ex. BBB (Law No. 3955 art. 2.I.). The law further looked to Bolivian inheritance law to identify a decedent's heirs. See
Plaintiffs appear to concede that both Ms. Espejo and Mr. Mamani Aguilar did not personally apply for benefits under Law No. 3955. See CSMF ¶ 5 ("Because of the limited time in which [Ms. Espejo] had to apply for benefits and the time it would have taken to obtain official paperwork showing her common-law marriage status, she instead chose to apply for the benefits for her family under her minor son Aldair's name because she had his birth certificate."); id. ¶ 10 ("Mr. Mamani Aguilar's mother handled applying for the benefits for the entire family and he did not ask her about the details."). Plaintiffs insist, however, that Ms. Espejo and Mr. Mamani Aguilar nonetheless received benefits *1317through other family members who were beneficiaries under Law No. 3955.
To be sure, this Court held in Mamani I that Plaintiffs "are required to seek compensation in Bolivia under Law No. 3955 before they can assert their TVPA claims."
VII. CONCLUSION
Having addressed all issues raised by Defendants in their Joint Motion, it is thereupon ORDERED and ADJUDGED that Defendants' Joint Motion for Summary Judgment [DE 342 in Case No. 07-22459; DE 321 in Case No. 08-21063] is DENIED .
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 14th day of February, 2018.
Related
Cite This Page — Counsel Stack
309 F. Supp. 3d 1274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mamani-v-berzain-flsd-2018.