{"id":8396,"date":"2018-08-28T02:37:45","date_gmt":"2018-08-28T06:37:45","guid":{"rendered":"http:\/\/www.journals.law.harvard.edu\/ilj\/?p=8396"},"modified":"2019-02-13T16:43:23","modified_gmt":"2019-02-13T21:43:23","slug":"can-there-be-an-accidental-extrajudicial-killing-understanding-standards-of-intent-in-the-torture-victim-protection-act","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/ilj\/2018\/08\/can-there-be-an-accidental-extrajudicial-killing-understanding-standards-of-intent-in-the-torture-victim-protection-act\/","title":{"rendered":"Can There Be an Accidental Extrajudicial Killing? Understanding standards of intent in the Torture Victim Protection Act"},"content":{"rendered":"<style><span data-mce-type=\"bookmark\" style=\"display: inline-block; width: 0px; overflow: hidden; line-height: 0;\" class=\"mce_SELRES_start\">\ufeff<\/span><span data-mce-type=\"bookmark\" style=\"display: inline-block; width: 0px; overflow: hidden; line-height: 0;\" class=\"mce_SELRES_start\">\ufeff<\/span><br \/>h1 {text-align: center; font-size: 105%; font-variant: small-caps;}<br \/>h2 {text-align: center; font-size: 105%; font-style: italic;}<br \/>h3 {text-align: left; font-size: 105%;}<br \/>.entry-title {font-size: 150%;}<br \/><\/style>\n<p>By Lindsay Bailey<sup><a href=\"#_ftn1\" name=\"_ftnref1\">[1]<\/a><\/sup><em>\u00a0<\/em><\/p>\n<h1><a name=\"_Toc517854900\"><\/a>I.\u00a0Introduction<\/h1>\n<p>In most cases of extrajudicial killing, the intent is clear.\u00a0 A trigger is pulled or a bomb is detonated, and no one questions if the killer meant to shoot the gun and planned for the consequences of their actions. While the Torture Victim Protection Act (TVPA) requires that a killing be deliberated to qualify as extrajudicial,<a href=\"#_ftn2\" name=\"_ftnref2\"><sup>[2]<\/sup><\/a> few courts have ruled on what scienter<a href=\"#_ftn3\" name=\"_ftnref3\"><sup>[3]<\/sup><\/a> is required by the phrase deliberated.<\/p>\n<p>In <em>Mamani et al v. S\u00e1nchez de Lozada and S\u00e1nchez Berza\u00edn <\/em>(\u201c<em>Mamani<\/em>\u201d), the Eleventh Circuit Court of Appeals held that Defendants would not be liable for extrajudicial killings if the killings resulted from \u201caccidental or negligent shooting\u201d by forces under their command.<a href=\"#_ftn4\" name=\"_ftnref4\"><sup>[4]<\/sup><\/a> This ruling unjustifiably narrowed the definition of extrajudicial killing by raising the burden of proof for the Plaintiffs in the case and setting a precedent that lowers the standard of care for military and police everywhere. While Plaintiffs argued that the killings were not accidental, even if what Defendants argued was hypothetically true\u2014the deaths were a result of accidental or negligent shootings\u2014the TVPA\u2019s definition of deliberated could, and should, encompass this type of extrajudicial killing.<\/p>\n<p>An accidental killing, as part of a larger planned military operation, should be considered \u201cdeliberated\u201d under the TVPA. The Court should rely on the text of the statute and the intent of the drafters to interpret deliberated in this type of case.\u00a0 The term deliberated is ambiguous because it could refer to a variety of standards of scienter.\u00a0 The legislative history does not clarify this ambiguity, but it is clear that the drafter\u2019s intent was to follow customary international law\u2019s definition of extrajudicial killing. In light of this intent, courts should interpret deliberated to comply with international law.\u00a0 International law imposes liability for extrajudicial killings that resulted from negligent actions by the plaintiff.\u00a0 A negligence standard serves policy goals, including encouraging governments to take steps to prevent extrajudicial killing and placing the burden of preventing extrajudicial killing on the actor who is both the least cost avoider and the most capable of taking preventative measures.<\/p>\n<h1><a name=\"_Toc517854901\"><\/a>II. Defendants in Mamani argued that killings of protestors committed by security forces were accidental.<\/h1>\n<p><em>Mamani <\/em>is an ongoing civil case for punitive and compensatory damages for extrajudicial killing under the TVPA, among other claims.<a href=\"#_ftn5\" name=\"_ftnref5\"><sup>[5]<\/sup><\/a> The facts of the case center around 2003 protests in Bolivia known as the Gas War.\u00a0 The defendants are the former President and Defense Minister of Bolivia. Defendants implemented a controversial plan to export gas through Chile.\u00a0 Large demonstrations erupted, protesting this plan. \u00a0The military killed 58 civilians while suppressing these protests.<a href=\"#_ftn6\" name=\"_ftnref6\"><sup>[6]<\/sup><\/a>\u00a0 Relatives of the Plaintiffs were among those killed, including a pregnant woman and an eight year old girl who were sheltering their homes.<\/p>\n<p>Plaintiffs alleged that the Defendants \u201cplanned to send the military to shoot to kill and injure people without regard to whether they were engaged in any conduct that would justify the lawful use of lethal force.\u201d<a href=\"#_ftn7\" name=\"_ftnref7\"><sup>[7]<\/sup><\/a>\u00a0 Defendants denied this allegation. Plaintiffs also alleged that their relatives\u2019 deaths were a result of the military intentionally aiming at their relatives. Defendants also denied this allegation and claimed that the Plaintiffs\u2019 relatives\u2019 deaths were a result of \u201caccidental or negligent shooting.\u201d<a href=\"#_ftn8\" name=\"_ftnref8\"><sup>[8]<\/sup><\/a><\/p>\n<h1><a name=\"_Toc517854902\"><\/a>III. Prior to Mamani there was no precedent for what scienter standard would fulfill the deliberated requirement when killings are committed by security forces when suppressing a protest.<\/h1>\n<p>Before <em>Mamani, <\/em>the TVPA\u2019s requirement that extrajudicial killings be deliberated has not been the subject of lengthy legal opinions.<a href=\"#_ftn9\" name=\"_ftnref9\"><sup>[9]<\/sup><\/a> \u00a0The only TVPA cases in American courts that based their claim on extrajudicial killings were based on extremist attacks,<a href=\"#_ftn10\" name=\"_ftnref10\"><sup>[10]<\/sup><\/a> targeted assassinations or summary executions,<a href=\"#_ftn11\" name=\"_ftnref11\"><sup>[11]<\/sup><\/a> shooting down a plane,<a href=\"#_ftn12\" name=\"_ftnref12\"><sup>[12]<\/sup><\/a> murder after torture,<a href=\"#_ftn13\" name=\"_ftnref13\"><sup>[13]<\/sup><\/a> or the use of pesticides or Agent Orange.<a href=\"#_ftn14\" name=\"_ftnref14\"><sup>[14]<\/sup><\/a> \u00a0It would be challenging to argue that these killings were negligent or accidental due to the nature of these incidents and Defendants have only advanced such an argument in the pesticide cases.<a href=\"#_ftn15\" name=\"_ftnref15\"><sup>[15]<\/sup><\/a> \u00a0The Defendants in the pesticide cases would have had a fundamentally different scienter than the Defendants in <em>Mamani<\/em> because they only intended to \u201ckill or harm plants.\u201d<a href=\"#_ftn16\" name=\"_ftnref16\"><sup>[16]<\/sup><\/a> \u00a0Conversely, Defendants in <em>Mamani<\/em> do not deny that security forces intended to kill or harm some people\u2014their argument is that they did not intend to kill or harm the victims.\u00a0 Shooting a gun is a very different act from spraying pesticide. <em>Mamani <\/em>is thus a case of first impression, for adjudicating a claim against state security forces who killed citizens while suppressing a protest and thus for determining what scienter is required for a shooting to qualify as extrajudicial.<\/p>\n<p>In <em>Mamani<\/em>, the Eleventh Circuit Court of Appeals held that defendants could only be liable for extrajudicial killings that were \u201cundertaken with studied consideration and purpose\u201d which does not include killings that were a result of \u201caccidental or negligent shooting.\u201d<a href=\"#_ftn17\" name=\"_ftnref17\"><sup>[17]<\/sup><\/a>\u00a0 In making this determination, the court did not cite any other case that defined deliberated in the TVPA context.\u00a0 Even if the court had cited other cases, the other TVPA cases that discuss deliberation address a completely different class of extrajudicial killing and their standards were not developed for application against state security forces suppressing a protest.\u00a0 The court had an opportunity to set a precedent, and they set the wrong one. The court should reconsider their interpretation of deliberated, based on the ambiguity of the word deliberated in the text and the legislative history, the clear intent to comply with customary international law\u2019s definition of extrajudicial killing, and the policy implications of a strict standard of intent.<\/p>\n<h1><a name=\"_Toc517854903\"><\/a>IV. The textual meaning of deliberated is ambiguous because there are a variety of levels of scienter that are compatible with deliberation.<\/h1>\n<p>A strict textual reading of the phrase deliberated does not yield a specific legal definition.\u00a0 Black\u2019s Law Dictionary defines deliberated as \u201c[c]arried on coolly and steadily, especially according to a preconceived design.\u201d<a href=\"#_ftn18\" name=\"_ftnref18\"><sup>[18]<\/sup><\/a> The Eleventh Circuit explained that an action is deliberate if it is \u201cundertaken with studied consideration and purpose.\u201d<a href=\"#_ftn19\" name=\"_ftnref19\"><sup>[19]<\/sup><\/a>\u00a0 If deliberated is interpreted to essentially mean planned, the text of the statute is ambiguous as to what aspects of the actus reus of killing the scienter of deliberated applies to. Does the defendant need to deliberately pull the trigger or deliberately aim at a specific person?<\/p>\n<p>While it may be tempting to assume that deliberated should take on the same meaning as it does in criminal statutes for first degree murder,<a href=\"#_ftn20\" name=\"_ftnref20\"><sup>[20]<\/sup><\/a>\u00a0 the TVPA creates a civil cause of action. \u00a0Thus, deliberated should be interpreted to be consistent with one of the scienter requirements under tort law. There is an ongoing debate about the appropriate level of scienter for intentional torts, with courts divided between single intent and dual intent.<a href=\"#_ftn21\" name=\"_ftnref21\"><sup>[21]<\/sup><\/a>\u00a0 In negligence and strict liability cases, tort law also uses a lower level of scienter.\u00a0 Deliberated could be interpreted to be consistent with any of these definitions of scienter.<\/p>\n<p>Dual intent would require the defendant to intend to commit the act that killed or injured the plaintiffs and \u201cdesires to cause consequences of his act, or . . . believes that the consequences are substantially certain to result from it.\u201d<a href=\"#_ftn22\" name=\"_ftnref22\"><sup>[22]<\/sup><\/a> This standard would only exclude a negligent shooting if the defendant would have thought killing someone was not \u201csubstantially certain\u201d to result. \u00a0For instance, the Restatement of Torts uses the illustration where \u201cA throws a bomb into B&#8217;s office for the purpose of killing B. A knows that C, B&#8217;s stenographer, is in the office. A has no desire to injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort.\u201d<a href=\"#_ftn23\" name=\"_ftnref23\"><sup>[23]<\/sup><\/a> Under this standard, security forces would be liable for the \u201caccidental\u201d shootings in <em>Mamani<\/em> if they knew that shooting a gun was substantially certain to cause someone\u2019s death. Furthermore, this standard would not exclude a shooting where the defendant shot with the intent of wounding, rather than killing, the victim.<a href=\"#_ftn24\" name=\"_ftnref24\"><sup>[24]<\/sup><\/a> \u00a0Deliberated could be interpreted consistently with this standard- the defendant planned the act and planned the harm, or disregarded that harm was substantially certain to result.\u00a0 The defendant would not need to have deliberated for a lengthy period of time- only a second to plan to target and shoot an individual would be sufficient to meet this standard.<\/p>\n<p>Combined with the doctrine of transferred intent, dual intent would also include a negligent or accidental shooting where the defendant intended to kill or injure a <em>different<\/em> individual.\u00a0 If the defendant intends to commit an intentional tort against a third party and harmed or killed the victims, the defendant is liable for an intentional tort.<a href=\"#_ftn25\" name=\"_ftnref25\"><sup>[25]<\/sup><\/a>\u00a0 This would include an accidental or negligent shooting, if the plaintiffs can demonstrate that the defendants had intended to shoot someone else, and intended to either kill or injure them.\u00a0 Deliberated is also consistent with transferred intent- while the defendant did not plan to shoot and kill this specific victim, they did plan to shoot someone.<\/p>\n<p>Many courts have rejected the dual intent definition of scienter, and instead use single intent.\u00a0 Single intent would only require the defendant to intend to make contact with the victim.<a href=\"#_ftn26\" name=\"_ftnref26\"><sup>[26]<\/sup><\/a>\u00a0 They would not have to intend any harm. \u00a0This would exclude an accidental or negligent shootings where the defendant did not intend to make contact with the victim.\u00a0 Under the doctrine of transferred intent, this would include cases where the defendant intentionally shot a gun to make contact with a third party and accidentally hit the wrong target.\u00a0 This would include an accidental shooting where the security forces intended to make contact with one person, and accidentally made contact with the victims.\u00a0 This definition of scienter is also consistent with deliberated, because the defendant planned to make contact with someone.<\/p>\n<p>Deliberated could also be consistent with a negligence standard. An actor is negligent when their conduct breaches the standard of care that a reasonable person would take in that situation to protect others from a risk of harm.<a href=\"#_ftn27\" name=\"_ftnref27\"><sup>[27]<\/sup><\/a>\u00a0 This standard of care is defined based on what a \u201creasonable [person] under like circumstances\u201d would do.<a href=\"#_ftn28\" name=\"_ftnref28\"><sup>[28]<\/sup><\/a>\u00a0 The difference between negligence and dual intent, is that in dual intent the harm must be \u201calmost certain\u201d to result from the action, while in negligence the actor is disregarding a lower level of risk of harm that a reasonable person would have prevented.<a href=\"#_ftn29\" name=\"_ftnref29\"><sup>[29]<\/sup><\/a> This standard could be consistent with deliberated in the sense that the defendant would have planned their action or inaction, even if they did not plan for that action to breach the duty of care and harm someone. For instance, if the military deliberated about a plan to suppress a civil uprising and accidentally killed protesters because the plan did not adhere to the standard of care that a reasonable military plan would, the plan itself was still deliberated. \u00a0If a soldier shot accidentally a civilian, and was not conforming to the standard that a reasonable soldier would follow under a similar situation, they still deliberated about pulling the trigger.<\/p>\n<p>Finally, deliberated could be consistent with strict liability.\u00a0 Under tort law, individuals can be held strictly liable for \u201cabnormally dangerous\u201d activities \u201cif the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors and the activity is not one of common usage.\u201d<a href=\"#_ftn30\" name=\"_ftnref30\"><sup>[30]<\/sup><\/a>\u00a0 This standard is different than negligence because even if the defendant exercised all reasonable care, they would still be liable for the deaths they cause.<a href=\"#_ftn31\" name=\"_ftnref31\"><sup>[31]<\/sup><\/a>\u00a0 This scienter has been limited to a short list of activities, and use of firearms is not one of them.<a href=\"#_ftn32\" name=\"_ftnref32\"><sup>[32]<\/sup><\/a>\u00a0 However, suppressing a civil uprising is far less common than using firearms.<a href=\"#_ftn33\" name=\"_ftnref33\"><sup>[33]<\/sup><\/a>\u00a0 Even the most careful government exercising reasonable care could foresee that they would unintentionally kill innocent people. Furthermore, deliberated could be consistent with strict liability, because defendants planned to and deliberately did engage in an abnormally dangerous activity.<\/p>\n<p>Deliberated could apply to any tort scienter standard, including dual intent, single intent, strict liability, and negligence.\u00a0 Furthermore, any of these standards could include some liability for an \u201caccidental or negligent shooting (including mistakenly identifying a target as a person who did pose a threat to others)[.]\u201d<a href=\"#_ftn34\" name=\"_ftnref34\"><sup>[34]<\/sup><\/a> Dual intent would include an accidental shooting where the shooter was aware that they were substantially certain to hit someone or intended to hit a third party. Single intent would include an accidental shooting where the shooter intended to make contact with a third party.\u00a0 Negligence would include an accidental shooting where the shooter did not take reasonable precautions against hitting the victim.\u00a0 Strict liability would include all shootings during the suppression of a civil uprising. Without further guidance in the statute, a strict textual reading does not answer the question of what scienter is required for a successful claim of extrajudicial killing or whether accidental or negligent shootings have sufficient scienter to qualify as extrajudicial.<\/p>\n<h1><a name=\"_Toc517854904\"><\/a>V.\u00a0The legislative history does not demonstrate that the drafters contemplated that deliberated would necessarily require a standard of intent higher than negligence.<\/h1>\n<p>The legislative history of the TVPA demonstrates that the drafters did not necessarily intend for the deliberated standard to require any scienter beyond planning some kind of action and deviating from a reasonableness standard with respect to the assessment of whether the killing was extrajudicial.\u00a0 The legislative history only mentions deliberated once.\u00a0 It states that \u201c[t]he inclusion of the word deliberated is sufficient also to [ex]clude killings that lack the requisite extrajudicial intent, such as those caused by a police officer\u2019s authorized use of deadly force.\u201d<a href=\"#_ftn35\" name=\"_ftnref35\"><sup>[35]<\/sup><\/a>\u00a0 The drafters did not clarify what they understood to be \u201cthe requisite extrajudicial intent\u201d and what definition of deliberated would be \u201csufficient to [ex]clude killings that lack the requisite extrajudicial intent.\u201d\u00a0 The only clarification is the drafters\u2019 example of a police officer\u2019s authorized use of deadly force.<\/p>\n<p>Requisite extrajudicial intent could be a general question about the intent to cause death. The requirement could be an intent to kill, the intent to pull the trigger, the intent to willfully disregard the risk of death, or the intent to undertake an action that a reasonable person would know created a significant risk of death. The report does not indicate which standard of intent to use here.\u00a0 The example provided by the drafters, killings resulting from a police officer\u2019s authorized use of force, is not illustrative because a police officer could be held liable for wrongful death based on an intent to disregard the risk of causing death, a deliberate and malicious plan to intentionally cause death, or intentionally taking actions that a reasonable person would know would cause death.<a href=\"#_ftn36\" name=\"_ftnref36\"><sup>[36]<\/sup><\/a> Thus, this interpretation of requisite extrajudicial intent does not necessarily yield a specific scienter definition of deliberate.<\/p>\n<p>Alternatively, the requisite extrajudicial intent could be a requirement about the intent that the killing take place without a trial and without any of the justifications for lethal force that are authorized under international law.\u00a0 That is, the requirement could be that the defendant specifically intended to commit an extrajudicial killing.\u00a0 At first, this seems narrower. The requisite extrajudicial intent of a police officer would be to intend to kill someone without authorization under international law- and a police officer who killed someone with authorization had no extrajudicial intent.\u00a0 However, to intend to kill someone without authorization under international law or to intend to kill someone without authorization does not necessarily clarify intent.\u00a0 Perhaps police officers do not have authorization to negligently kill someone, or a reckless killing would not be authorized under international law.\u00a0 This leads to the question- what does it means for a police officer to intend to kill someone without \u2018authorization\u2019?<\/p>\n<p>The drafters could not have intended for \u2018authorization\u2019 to mean sanction from a higher power. Police officers are liable for actions that they take while following orders, if those actions are illegal. The legislative history specifically notes that \u201clow-level officials cannot escape liability by claiming that they were acting under orders of superiors.\u201d<a href=\"#_ftn37\" name=\"_ftnref37\"><sup>[37]<\/sup><\/a><\/p>\n<p>Instead, the drafters probably intended for \u2018authorization\u2019 to be equated with legal under international law or domestic law. A killing without trial by security forces is only authorized under international law if the killer reasonably believed that the killing was necessary and reasonably believed they were targeting the right person.<a href=\"#_ftn38\" name=\"_ftnref38\"><sup>[38]<\/sup><\/a>\u00a0 Similarly, a killing without trial by American police officers is only authorized under domestic law if the officer reasonably believed that lethal force was necessary and that they were using lethal force against \u201cthe right man\u201d.<a href=\"#_ftn39\" name=\"_ftnref39\"><sup>[39]<\/sup><\/a>\u00a0 A definition of deliberated that is sufficient to exclude killings where security forces reasonably believed that the killing was necessary would be a very low standard. The killer could only escape liability for an accidental or negligent killing if they reasonably believed that killing that person was necessary, or were trying to kill a different person whose death they reasonably believed was necessary and took reasonable precautions to prevent unnecessary deaths.\u00a0 This interpretation of the legislative history demonstrates that the TVPA could include a construction of deliberated that only requires a deliberated plan to use lethal force and a failure to reasonably consider whether that lethal force would result in killing was necessary and proportional.<\/p>\n<h1><a name=\"_Toc517854905\"><\/a>VI.\u00a0The legislative history demonstrates that the drafters intended to comply with customary international law, so courts should interpret deliberated consistently with the negligence scienter for extrajudicial killing found in customary international law.<\/h1>\n<p>&nbsp;<\/p>\n<h2><a name=\"_Toc517854906\"><\/a>A)\u00a0\u00a0 The drafters intended for the TVPA to comply with customary international law.<\/h2>\n<p>The legislative history of the TVPA repeatedly states that \u201c[t]he TVPA incorporates into U.S. law the definition of extrajudicial killing found in customary international law.\u201d<a href=\"#_ftn40\" name=\"_ftnref40\"><sup>[40]<\/sup><\/a>\u00a0This indicates that the drafters did not intend to ignore customary international law with their use of deliberated and that it is appropriate to incorporate the international law definition of intent for extrajudicial killing into domestic proceedings, especially in light of the ambiguity in the TVPA.\u00a0 Furthermore, the 1988 House Report recognized that the TVPA was proposed \u201cto carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights[.]\u201d<a href=\"#_ftn41\" name=\"_ftnref41\"><sup>[41]<\/sup><\/a>\u00a0 Insofar as carrying out obligations under the United Nations Charter requires respecting statements made by Special Rapporteurs, for the drafters\u2019 purpose to fulfilled the TVPA would need to reflect the Special Rapporteur\u2019s definition of extrajudicial killing.\u00a0 For these reasons, it is appropriate to consider the customary international law definition of extrajudicial intent when faced with ambiguity in the TVPA.<\/p>\n<h2><a name=\"_Toc517854907\"><\/a>B)\u00a0\u00a0 Customary international law uses a negligence standard for extrajudicial killing.<\/h2>\n<p>Customary international law has never established a requirement that shooters deliberately target specific individuals for extrajudicial killing and only requires a negligent act to find extrajudicial intent. Accepted sources of evidence of customary international law include treaties, international jurisprudence, international resolutions, actions by states reflecting the view that practices violate the law, and the writing of scholars.<a href=\"#_ftn42\" name=\"_ftnref42\"><sup>[42]<\/sup><\/a><\/p>\n<p>None of the international instruments establishing the obligation to refrain from violating the right to life mention an intent requirement.<a href=\"#_ftn43\" name=\"_ftnref43\"><sup>[43]<\/sup><\/a>\u00a0 The most recent report of the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions stated that the scienter of an extrajudicial killing could be demonstrated through \u201ccriminal intent but also negligence through acts of omission or commission, that is, a situation where the State \u201cknew of should have known\u201d but failed to take actions that could have prevented deaths.\u201d<a href=\"#_ftn44\" name=\"_ftnref44\"><sup>[44]<\/sup><\/a>\u00a0 Other reports from the Special Rapporteur stated that extrajudicial killings may take place \u201cin a shoot-out with government forces or police\u201d<a href=\"#_ftn45\" name=\"_ftnref45\"><sup>[45]<\/sup><\/a> and include \u201cincidents of indiscriminate killing of civilian non-combatants,\u201d<a href=\"#_ftn46\" name=\"_ftnref46\"><sup>[46]<\/sup><\/a> such as \u201cshooting at unarmed crowds without warning [.]\u201d<a href=\"#_ftn47\" name=\"_ftnref47\"><sup>[47]<\/sup><\/a>\u00a0 Under this standard, the allegedly accidental and negligent killings in <em>Mamani<\/em> would qualify as extrajudicial killings.<\/p>\n<p>Regional human rights courts have also found liability for extrajudicial killing based on a negligence standard. In <em>Gul v. Turkey<\/em>, a police officer shot through a closed door multiple times. In finding the police officer guilty of extrajudicial killing, the European Court of Human Rights held that it did not need \u201cto determine whether the police officers had formulated the intention of killing or acted with reckless disregard for the life of the person behind the door. [The court] not fulfil the functions of a criminal court as regards the allocation of degree of individual fault. It is satisfied that the police officers used a disproportionate degree of force in the circumstances[.]\u201d<a href=\"#_ftn48\" name=\"_ftnref48\"><sup>[48]<\/sup><\/a> Similarly, in <em>\u201cCaracazo\u201d v. Venezuela<\/em> police and military personnel indiscriminately shot civilians while suppressing protests. Again, officers may never have formed the deliberate intention to shoot the civilians.\u00a0 Rather, they deliberately formed an intention to shoot indiscriminately.\u00a0 The American Court of Human Rights held that the police officers\u2019 actions were extrajudicial killings.<a href=\"#_ftn49\" name=\"_ftnref49\"><sup>[49]<\/sup><\/a> In <em>McCann v. the United\u00a0 Kingdom<\/em>, the European Court of Human Rights noted with disapproval that\u00a0 \u201cthe jury focused on the actions of the soldiers as they opened fire as if it were considering their criminal culpability and not on matters such as the allegedly negligent and reckless planning of the operation.\u201d<a href=\"#_ftn50\" name=\"_ftnref50\"><sup>[50]<\/sup><\/a> The ECHR then held that the use of deadly force may be justified \u201cwhere it is based on an honest belief which is perceived, for good reasons, to be valid at the time but which subsequently turns out to be mistaken.\u201d<a href=\"#_ftn51\" name=\"_ftnref51\"><sup>[51]<\/sup><\/a>\u00a0 The use of \u201can honest belief . . . for good reasons\u201d implies that the ECHR uses a reasonableness standard when assessing liability for extrajudicial killing. International tribunals interpreting the laws of war have similarly found military officers responsible for indiscriminately killing civilians when civilians \u201cwere the subject of reckless fire into areas where civilians were known to have been.\u201d<a href=\"#_ftn52\" name=\"_ftnref52\"><sup>[52]<\/sup><\/a>\u00a0 Notably, this was in a trial for war crimes, which typically require high levels of intent. Thus, international tribunals have consistently held that the appropriate standard for intent in extrajudicial killing cases, even in criminal law cases where the standard of intent should be higher than a torts case.<\/p>\n<p>Statements by the United States government and American authorities on international law have not interpreted the customary international law norms of extrajudicial killing to require a high level of intent.\u00a0 The American Law Institute\u2019s Restatement (Third) of the Foreign Relations Law states \u201c[I]t is a violation of international law for a <em>state to kill<\/em> an individual other than as lawful punishment pursuant to conviction in accordance with due process of law, or as necessary under exigent circumstances.\u201d<a href=\"#_ftn53\" name=\"_ftnref53\"><sup>[53]<\/sup><\/a>\u00a0 Nowhere in this definition is there a scienter requirement.\u00a0 In 2001 the US Bureau of Democracy, Human Rights and Labor included \u201ckillings committed by police or security forces that resulted in the unintended death of persons without due process of law (for example, mistargeted bombing or shelling or killing of bystanders)\u201d as a type of arbitrary killing.<a href=\"#_ftn54\" name=\"_ftnref54\"><sup>[54]<\/sup><\/a>\u00a0 This statement from an executive department explicitly includes <em>unintended<\/em> deaths as extrajudicial killings.<\/p>\n<p>Many of the treaties, the laws of war, and some of the statements from the Special Rapporteur discussed above were already in force at the time the TVPA was passed.\u00a0 This indicates that at that time of drafting the customary international law definition of extrajudicial intent was probably a negligence standard.\u00a0 While some of these sources of customary international law were established after the statute was passed, the reference to customary international law should not encompass only customary international law as it existed at the time the bill was passed. When the drafters proposed the TVPA \u201cto carry out the obligations of the United States,\u201d<a href=\"#_ftn55\" name=\"_ftnref55\"><sup>[55]<\/sup><\/a> they did not cite \u201ccurrent obligations.\u201d The drafters were probably aware of the possibility that future treaties may be signed.\u00a0 The current and past scienter requirement for extrajudicial killing under international law is negligence, and would encompass an accidental shooting.\u00a0 As discussed <em>infra<\/em>, implementing this negligence standard would also be consistent with the drafter\u2019s intent to exclude killings \u201ccaused by a police officer\u2019s authorized use of deadly force.\u201d Thus, a negligence standard for intent is both consistent with international law standards and the drafters\u2019 purpose.<\/p>\n<h1><a name=\"_Toc517854908\"><\/a>VII. Compelling policy support using a negligence standard.<\/h1>\n<p>Regardless of the intent of the drafters or the meaning of deliberated, there are extensive policy reasons for defining using a negligence standard for extrajudicial intent.\u00a0 A negligence standard will deter extrajudicial killing and create incentives for governments to take reasonable precautions to avoid negligently killing their citizens.\u00a0 It distributes the cost of taking precautions against extrajudicial killing to the government, who is the least cost avoider and the most capable of taking on the cost of avoiding killing. The arguments against negligence- keeping the floodgates of litigation closed and preserving the special condemnation for intentional crimes- are not compelling.\u00a0 Ultimately, a negligence standard is more likely to reduce the incidence of extrajudicial killing and provide victims with redress- which is the stated goal of legislation entitled the Torture <em>Victims Protection<\/em> Act.<\/p>\n<h2><a name=\"_Toc517854909\"><\/a>A)\u00a0\u00a0 A negligent standard will create incentives for governments to take reasonable precautions against killing their citizens.<\/h2>\n<p>A standard of intent that favors the victims creates incentives for governments and individuals acting under the color of law to take reasonable precautions that reduce the risk of extrajudicial killings. This definition would deter governments from negligently planning their responses to riots or strikes in a manner that would put civilians at risk of being killed unnecessarily.\u00a0 It would encourage governments to closely monitor and extensively train individuals acting under the color of law to comply with international law norms around what killings are permissible. If the defendants knew that they could only be held liable if they possessed dual intent, or even single intent, they are less likely to take reasonable steps to prevent extrajudicial killing.<\/p>\n<h2><a name=\"_Toc517854910\"><\/a>B)\u00a0\u00a0 The shooter is the least cost avoider.<\/h2>\n<p>A negligence standard for deliberate also distributes costs in a more equitable way.\u00a0 If the standard required the intent to harm the individual, when there was no intent to harm the victim absorbs the entire costs of the shooting.\u00a0 However, in many cases the victim is unable to avoid being shot, for instance, a pregnant woman sitting on the couch in her home.\u00a0 They would have to take on enormous costs to avoid being shot (such as fleeing the country), or take on the cost that arose from the shooting.\u00a0 The costs of prevention for the shooter are far lower.\u00a0 Taking reasonable steps to prevent unnecessary deaths will create some burden on the shooter.\u00a0 They may take longer to subdue the protest, and perhaps more soldiers would have been killed.\u00a0 However, they both have the ability to take these reasonable steps, and avoidance is almost certainly less burdensome for them than the victim.\u00a0 They could choose not to shoot or choose to avoid shooting when there is a substantial risk of harming innocent individuals.\u00a0 Since tort law distributes the costs of harm among individuals, the law should use a standard that always puts the costs of shooting on the shooter because the shooter incurs fewer costs in avoiding unnecessary killing.\u00a0\u00a0 This should be the case whether the defendant intentionally or negligently kills the victim. While the costs of avoiding a negligent killing are higher than the costs of avoiding an intentional killing, the costs for the shooter are still lower than the costs for the victim.<\/p>\n<h2><a name=\"_Toc517854911\"><\/a>C)\u00a0\u00a0 The government actors are more capable of absorbing the costs of avoidance and should be incentivized to ensure the costs of avoidance are not borne by a small segment of the population.<\/h2>\n<p>Policymakers should consider which actor is most able to avoid harm, not just which actor has the lowest costs of avoiding harm.\u00a0 In extrajudicial killings, the defendant is necessarily a government agent, with all the resources and power of the government behind them.\u00a0 They have the resources of the government to plan appropriately and reasonably.\u00a0 They also have the resources of the government to litigate if necessary.\u00a0 The victim is a citizen.\u00a0 In <em>Mamani, <\/em>the victims are the most marginalized and impoverished citizens of Bolivia, although this might not be the case with every extrajudicial killing.\u00a0 Even if the citizen\u2019s costs of avoiding being killed were slightly lower than the government\u2019s costs of avoiding shooting, the government is often more capable of absorbing a higher cost than a citizen.\u00a0 In criminal law, the intent and evidentiary standards are higher because the government is the plaintiff and the justice system is concerned that the power of the government is grossly disproportionate to the power of the individual as defendant. In torts where the government is the defendant, the same principle about the power of the government should be applied.\u00a0 Thus, the intent standard should be lower as the justice system should be aware that the power of the defendant government to prevent harm is grossly disproportionate to the power of the individual.<\/p>\n<p>Another difference between a least-cost avoider analysis for a government and an individual is that the government considers the cost and benefit to society as a whole. The cost of a negligent government action may be borne by a few individuals, while the benefit is spread out across the entire society.\u00a0 Conversely, an individual receives the whole burden of their decisions- as well as the whole benefit.\u00a0 The government received the benefit from their decision to shoot- but that benefit might not have been shared equally with the plaintiff, or individuals like the plaintiff.\u00a0 If the government makes a utilitarian decision that shooting some people to end a protest is necessary and will benefit society as a whole, they should be held to a very high standard of accountability to individuals who are harmed from that decision.\u00a0 This will ensure that the government takes appropriate steps to avoid harming a segment of society, even if it benefits another segment of society, and will redistribute the costs throughout all of society. Ultimately a negligence standard would more frequently put the cost on the government than a standard that required a higher level of scienter, which will put the avoidance costs on the actor who is most capable of absorbing them and will redistribute avoidance costs throughout society.<\/p>\n<h2><a name=\"_Toc517854912\"><\/a>The policy reasons for a stricter deliberated standard are not compelling.<\/h2>\n<p>There are some policy reasons for a stricter standard.\u00a0 First, a stricter standard would prevent the \u2018floodgates\u2019 of litigation from opening and bringing cases from across the world into the United States. If pleading a case is more challenging, plaintiffs are less likely to make it.\u00a0 Ultimately, whether this argument is persuasive depends on whether the reader is ever persuaded by the floodgates arguments that are advanced in a variety of areas of law.\u00a0 Second, a stricter standard distinguishes the grievous offence of extrajudicial killing from negligent killing.\u00a0 Lowering the standard for extrajudicial killing might make it seem less serious in the eyes of the public and the defendants. Similarly, torture is differentiated from inhuman or degrading treatment by the requirement that torture inflicts severe suffering. The International Criminal Tribunal for the Former Yugoslavia has stated that \u201cthe distinction between torture and inhuman or degrading treatment . . . allow[s] the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering.\u201d<a href=\"#_ftn56\" name=\"_ftnref56\"><sup>[56]<\/sup><\/a>\u00a0 Domestic statutes also differentiate between degrees of murder using standard of intent, which allows society to impose particularly severe sanctions on murder that was premeditated or carried out with a depraved heart. While imposing special liability for malicious or intentional crimes is a legitimate policy goal, tort law imposes liability in a different way than criminal law.\u00a0 Criminal law divides crimes up for different levels of liability by separating crimes into different levels of scienter.\u00a0 The name of the crime and the punishment is different depending on the scienter.\u00a0 Conversely, in tort law the punishment is in the form of damages which are primarily calculated based on the harm to the victim.\u00a0 Whether the tort was intentional or unintentional, the compensatory damages remain the same because they are based on the harm suffered by the victim.\u00a0 Punitive damages may be added if a tort was committed in a particularly callous manner.\u00a0 The desire to differentiate intentional extrajudicial killing from negligent accidental killing can be manifested in the damages phase, rather than the phase that articulates the elements of the offense.<\/p>\n<h1><a name=\"_Toc517854913\"><\/a>VIII. Conclusion<\/h1>\n<p>In <em>Mamani<\/em>, the defendants are trying to avoid liability for killings by security forces by claiming that the killings were accidental or negligent. Even if their claims were true, the defendants should still be liable under the TVPA.\u00a0 Prior to <em>Mamani<\/em>, no American court had ruled on what scienter would fulfill the TVPA\u2019s deliberated requirement when security forces kill civilians while suppressing a protest. <em>Mamani <\/em>was a case of first impression, and the Eleventh Circuit Court of Appeals was wrong to rule that if the killings were accidental, as Defendants claimed, they were not extrajudicial.<\/p>\n<p>Instead, the Court should have set a scienter standard that is true to the intent of the legislature and reflects the best possible policy choice.\u00a0 Deliberated is ambiguous, and could refer to planning an act (single intent, negligence, or strict liability), or planning the consequences of the act (dual intent).\u00a0\u00a0 The legislative history does not clarify which level of scienter the drafters intended to use, but demonstrates that the drafters intended to use a definition that is consistent with international law.\u00a0 International law holds security officers liable for extrajudicial killing if they were negligent in assessing if the killing was necessary.\u00a0 This includes accidental and negligent deaths.\u00a0 There are compelling policy reasons for using a negligence standard, including encouraging governments to take reasonable precautions before killing their citizens and placing the costs of avoidance or death on the least cost avoider and the actor who is most capable of absorbing the costs.\u00a0 The alternative, higher levels of scienter, would mean that ordinary citizens would bear the cost of the government\u2019s negligent actions.\u00a0 Ultimately, the purpose of the TVPA is to prevent extrajudicial killing and provide redress for extrajudicial killing, and a negligence standard is consistent with the text of the statute and best accomplishes these goals.<\/p>\n<p><a href=\"#_ftnref1\" name=\"_ftn1\">[1]<\/a> Lindsay Anne Bailey is a JD Candidate (2019) at Harvard Law School. The views represented in this Student Features do not reflect the views of the legal team in <em>Mamani et al v. S\u00e1nchez de Lozada and S\u00e1nchez Berza\u00edn.<\/em><\/p>\n<p><a href=\"#_ftnref2\" name=\"_ftn2\">[2]<\/a> The Torture Victim Protection Act defines extrajudicial killing as a \u201cdeliberated 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. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.\u201d Torture Victim Protection Act of 1991, \u00a73(a), 28 U.S.C. \u00a7 1350 (1994).<\/p>\n<p><a href=\"#_ftnref3\" name=\"_ftn3\">[3]<\/a> Scienter refers to the mental state sufficient to hold an individual legally accountable for their acts. The term is broader than mens rea, which solely applies to criminal intent.<\/p>\n<p><a href=\"#_ftnref4\" name=\"_ftn4\">[4]<\/a> <em>Mamani v. Berza\u00edn,<\/em> 654 F.3d 1148, 1152, 1155 (11th Cir. 2011). This was not a holding that the shootings were in fact accidental. Rather, it was a holding that if the shootings were accidental, as Defendants claimed and Plaintiffs disputed, then the Defendants were not liable.<\/p>\n<p><a href=\"#_ftnref5\" name=\"_ftn5\">[5]<\/a> The case has been ongoing since September 2007, when Plaintiffs initially filed their complaints. The case went to trial from March 5 to April 3, 2018, in federal court in Fout Lauderdale. The jury ruled in favor of the plaintiffs on April 3, 2018. The judge overturned the jury verdict under Rule 50 on May 30, 2018.<\/p>\n<p><a href=\"#_ftnref6\" name=\"_ftn6\">[6]<\/a> Second Amended Consolidated Complaint for Extrajudicial Killing; Crimes Against Humanity; and Wrongful Death at para. 6, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fl, 2013).<\/p>\n<p><a href=\"#_ftnref7\" name=\"_ftn7\">[7]<\/a> <em>Id.<\/em> at para. 3.<\/p>\n<p><a href=\"#_ftnref8\" name=\"_ftn8\">[8]<\/a> Defendants\u2019 Memorandum of Law in Support of Their Motion for Summary Judgement at 19, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fla. 2017).\u00a0 Note that throughout, for the purposes of scienter accidentally refers to a shooting where security forces did not intend to hit the target, but did intend to pull the trigger.<\/p>\n<p><a href=\"#_ftnref9\" name=\"_ftn9\">[9]<\/a> The most extensive discussion of the definition of deliberated was in <em>Flatow <\/em>where the court cited Black\u2019s Law Dictionary to define deliberated as &#8220;[c]arried on coolly and steadily, especially according to a preconceived design; given to weighing facts and arguments with a view to a choice or decision; careful in considering the consequences of a step;&#8221; <em>Flatow<\/em>, 999 F. Supp. at 17. The majority of the other cases are conclusory about whether the killing was deliberated. <em>See, e.g.<\/em>, <em>Elahi v. Islamic Republic of Iran<\/em>, 124 F. Supp. 2d 97, 107 (D.D.C. 2000) (\u201cthe uncontroverted evidence introduced at trial demonstrated that the assassination of Cyrus Elahi was a deliberate act.\u201d).<\/p>\n<p><a href=\"#_ftnref10\" name=\"_ftn10\">[10]<\/a> <em>See, e.g.<\/em>, <em>Flatow<\/em>, 999 F. Supp. at 17; <em>Eisenfeld v. Islamic Republic of Iran<\/em>, 172 F. Supp. 2d 1 (D.D.C. 2000); <em>Wagner v. Islamic Republic of Iran<\/em>, 172 F. Supp. 2d 128 (D.D.C. 2001);<em> Weinstein v. v. Islamic Republic of Iran<\/em>, 184 F. Supp. 2d 13 (D.D.C. 2002); <em>Stethem v. Islamic Republic of Iran<\/em>, 201 F. Supp. 2d 78 (D.D.C. 2002).<\/p>\n<p><a href=\"#_ftnref11\" name=\"_ftn11\">[11]<\/a> <em>See, e.g.<\/em>, <em>Elahi<\/em>, 124 F. Supp. 2d 97 (D.D.C. 2000); <em>Hilao v. Estate of Marcos<\/em>, 103 F.3d 767 (9th Cir. 1996).<\/p>\n<p><a href=\"#_ftnref12\" name=\"_ftn12\">[12]<\/a> <em>Alejandre v. Republic of Cuba<\/em>, 996 F. Supp. 1239 (S.D. Fla. 1997).<\/p>\n<p><a href=\"#_ftnref13\" name=\"_ftn13\">[13]<\/a> <em>See, e.g.<\/em>,<em> Ford ex rel. Estate of Ford v. Garcia<\/em>, 289 F.3d 1283, 1286 (11th Cir. 2002); <em>Warfaa v. Ali<\/em>, 33 F. Supp. 3d 653, 666 (E.D. Va. 2014).<\/p>\n<p><a href=\"#_ftnref14\" name=\"_ftn14\">[14]<\/a> <em>Arias v. Dyncorp,<\/em> 517 F. Supp. 2d 221, 226 (D.D.C. 2007); <em>In re Agent Orange Prod. Liab. Litig.,<\/em> 373 F. Supp. 2d 7, 112 (E.D.N.Y. 2005).<\/p>\n<p><a href=\"#_ftnref15\" name=\"_ftn15\">[15]<\/a> <em>See In re Agent Orange,<\/em> 373 F. Supp. 2d at 112 (finding that the \u201cuse of herbicides\u201d was not extrajudicial killing because the herbicides were not \u201cused to intentionally inflict pain and suffering\u201d); <em>Arias<\/em>, 517 F. Supp. 2d at 226 (holding fumigants \u201cshifted in the wind\u201d and drifted into Ecuador which is not a deliberated killing).<\/p>\n<p><a href=\"#_ftnref16\" name=\"_ftn16\">[16]<\/a> <em>In re Agent Orange<\/em>, 373 F. Supp. 2d at 112.<\/p>\n<p><a href=\"#_ftnref17\" name=\"_ftn17\">[17]<\/a> <em>Mamani v. Berza\u00edn,<\/em> 654 F.3d 1148, 1152, 1155 (11th Cir. 2011).<\/p>\n<p><a href=\"#_ftnref18\" name=\"_ftn18\">[18]<\/a> <em>Flatow v. Islamic Republic of Iran<\/em>, 999 F. Supp. 1, 17 (D.D.C. 1998) (citing Black\u2019s Law Dictionary).<\/p>\n<p><a href=\"#_ftnref19\" name=\"_ftn19\">[19]<\/a> <em>Mamani<\/em>, 654 F.3d at 1155.<\/p>\n<p><a href=\"#_ftnref20\" name=\"_ftn20\">[20]<\/a> <em>See, e.g.<\/em>, Miss. Code Ann. \u00a7 97-3-19 (Lexis Advance through the 2017 Regular and 1st Extraordinary Sessions)<\/p>\n<p>(\u201cThe killing of a human being without the authority of law by any means or in any manner shall be murder . . . when done with deliberate design to effect the death of the person killed, or of any human being, shall be first-degree murder[.]\u201d) Deliberated appears nowhere in the latest Model Penal Code.\u00a0 It made up part of the \u201cdegree structure that has dominated American murder provisions[,]\u201d which the latest code has removed. Model Penal Code \u00a7 210.2 cmt. (Am. Law Inst. 1984). Since the criminal law system is moving away from using malice aforethought to define mens rea, courts should be hesitant to incorporate criminal law\u2019s definition into the TVPA.<\/p>\n<p><a href=\"#_ftnref21\" name=\"_ftn21\">[21]<\/a> <em>See generally, <\/em>Nancy J. Moore, <em>Intent and Consent in the Tort of Battery: Confusion and Controversy<\/em>, 61 Am. U. L. Rev. 1585 (2012).<\/p>\n<p><a href=\"#_ftnref22\" name=\"_ftn22\">[22]<\/a> Restatement (Second) of Torts \u00a78A (Am. Law Inst. 1965). <em>See, e.g.<\/em>,<em> White v. Muniz<\/em>, 999 P.2d 814, 816 (Colo. 2000); <em>Garratt v. Dailey<\/em>, 279 P.2d 1091 (1955); <em>Burr v. Adam Eidemiller, Inc.<\/em>, 126 A.2d 403 (1956).<\/p>\n<p><a href=\"#_ftnref23\" name=\"_ftn23\">[23]<\/a> Restatement (Second) of Torts \u00a78A, illus. 1 (Am. Law Inst. 1965).<\/p>\n<p><a href=\"#_ftnref24\" name=\"_ftn24\">[24]<\/a> Under the eggshell skull rule, the plaintiff has the right to collect for unintended damages, even if they were not foreseeable. <em>See, e.g., Caudle v. Betts<\/em>, 512 So. 2d 389, 392 (La. 1987).<\/p>\n<p><a href=\"#_ftnref25\" name=\"_ftn25\">[25]<\/a> An actor is subject to liability to another for battery if\u00a0 he acts intending to cause a harmful or offensive contact with the person of the other <em>or a third person<\/em>.\u201d <em>See, <\/em>Restatement (Second) of Torts \u00a713 (Am. Law Inst. 1965) (emphasis added). Criminal law also assigns liability to a defendant who intended to kill one person but kills an unintended victim. <em>See, e.g.<\/em>, People v. Scott, 927 P.2d 288 (1996); Model Penal Code \u00a7 2.04(2) (Am. Law Inst. 1984).<\/p>\n<p><a href=\"#_ftnref26\" name=\"_ftn26\">[26]<\/a> <em>See, e.g.<\/em>, <em>Wagner v. Utah Dep&#8217;t of Human Servs.<\/em>, 122 P.3d 599, 601 (Ut. 2005); <em>Rajspic v. Nationwide Mut. Ins. Co.<\/em>, 718 P.2d 1167 (1986); <em>Maines v. Cronomer Valley Fire Dept., Inc.,<\/em> 407 N.E.2d 466 (1980); <em>White v. University of Idaho,<\/em> 797 P.2d 108 (Idaho 1990); <em>Brzoska v. Olson<\/em>, 668 A.2d 1355 (Del. 1995); <em>Meyers v. Epstein<\/em>, 232 F. Supp. 2d 192, 198 (S.N.D.Y. 2002); <em>Cheney v. Studstrup<\/em>, 32 F. Supp. 2d 1278, 1284 &amp; n.6 (D. Utah 1998); <em>Delahanty v. Hinckley<\/em>, 799 F. Supp. 184, 187 (D.D.C. 1992); <em>Williams v. Kearbey<\/em>, 775 P.2d 670, 673-74 (Kan. Ct. App. 1989); <em>Polmatier v. Russ<\/em>, 537 A.2d 468, 469-70 (Conn. 1988).<\/p>\n<p><a href=\"#_ftnref27\" name=\"_ftn27\">[27]<\/a> <em>See, <\/em>Restatement (Second) of Torts \u00a7281\u2013282 (Am. Law Inst. 1965).<\/p>\n<p><a href=\"#_ftnref28\" name=\"_ftn28\">[28]<\/a> <em>Id. <\/em>at 283.<\/p>\n<p><a href=\"#_ftnref29\" name=\"_ftn29\">[29]<\/a> <em>See id.<\/em> at \u00a7282, cmt. c.<\/p>\n<p><a href=\"#_ftnref30\" name=\"_ftn30\">[30]<\/a> Restatement (Third) of Torts \u00a720 (Am. Law Inst. 2010). <em>See, e.g.<\/em>,<em> Klein v. Pyrodyne Corp., <\/em>810 P.2d 917 (1991)<\/p>\n<p><a href=\"#_ftnref31\" name=\"_ftn31\">[31]<\/a> Restatement (Third) of Torts \u00a720 cmt. b (Am. Law Inst. 2010).<\/p>\n<p><a href=\"#_ftnref32\" name=\"_ftn32\">[32]<\/a> <em>Miller v. Civil Constructors, Inc.<\/em>, 651 N.E.2d 239 (Ill. App. Ct. 1995); <em>Resteiner v. Sturm, Ruger &amp; Co.,<\/em> 566 N.W.2d 53 (Mich. Ct. App. 1997); <em>Matulevich v. Matulevich,<\/em> 498 A.2d 939 (Pa. Super. Ct. 1985).<\/p>\n<p><a href=\"#_ftnref33\" name=\"_ftn33\">[33]<\/a> While Plaintiffs have argued in their expert reports that protests are relatively common in Bolivia, the experts do not argue that violent suppression of protests is common. While protests might be a common activity, using the military to suppress them is not. Opening Expert Report of Daniel M. Goldstein, Rojas Mamani et al v. Sanchez Berzain, No. 1:08-cv-21063-JIC (S.D Fl, 2016).<\/p>\n<p><a href=\"#_ftnref34\" name=\"_ftn34\">[34]<\/a> <em>Mamani v. Berza\u00edn,<\/em> 654 F.3d 1148, 1152, 1155 (11th Cir. 2011).<\/p>\n<p><a href=\"#_ftnref35\" name=\"_ftn35\">[35]<\/a> H.R. Rep. No. 102-367, at 5 (1991), <em>reprinted in<\/em> 1992 U.S.C.C.A.N. 84, 87. Notably, the legislative history actually states \u201cto include killings that lack the requisite extrajudicial intent\u201d, but based on the context it appears that the report ought to have stated \u201cto exclude\u201d, and include was a typographical error.<\/p>\n<p><a href=\"#_ftnref36\" name=\"_ftn36\">[36]<\/a> <em>See generally, Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death<\/em>, 60 A.L.R.2d 873, 3 (2017).<\/p>\n<p><a href=\"#_ftnref37\" name=\"_ftn37\">[37]<\/a> S. Rpt. 102-249 (1991).<\/p>\n<p><a href=\"#_ftnref38\" name=\"_ftn38\">[38]<\/a> <em>See infra <\/em>Part VI. \u00a0Notably, this memorandum does not address the definition of \u201cnecessary\u201d.<\/p>\n<p><a href=\"#_ftnref39\" name=\"_ftn39\">[39]<\/a> <em>See generally, Personal liability of policeman, sheriff, or other peace officer, or bond, for negligently causing personal injury or death<\/em>, 60 A.L.R.2d 873, 3 (2017).<\/p>\n<p><a href=\"#_ftnref40\" name=\"_ftn40\">[40]<\/a> S. Rpt. 102-249 (1991). <em>See also id.<\/em> at 5 (\u201cdefinition was drafted to be consistent with the 1949 Geneva Conventions\u201d); H. Rpt. 102-367 (1991) (<em>\u201c<\/em>The concept of &#8220;extrajudicial killings&#8221; is derived from article 3 common to the four Geneva Conventions of 1949.\u201d); H. Rpt. 101-55, at 4 (1989) (extrajudicial killing is defined \u201cin accordance with international standards\u201d).<\/p>\n<p><a href=\"#_ftnref41\" name=\"_ftn41\">[41]<\/a> H. Rpt. 100-693, at 1 (1989).<\/p>\n<p><a href=\"#_ftnref42\" name=\"_ftn42\">[42]<\/a> Restatement (Third) of Foreign Relations Law of the United States \u00a7102, 103(2)(a)\u2013(d) (Am. Law Inst. 1987).<\/p>\n<p><a href=\"#_ftnref43\" name=\"_ftn43\">[43]<\/a> International Covenant on Civil and Political Rights (Article 6); Charter on Human and Peoples&#8217; Rights (Article 4); African Charter on the Rights and Welfare of the Child (Article 5); Protocol to the African Charter on Human and Peoples&#8217; Rights on the Rights of Women in Africa (Article 4); Arab Charter on Human Rights (Article 5, 6); European Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2); American Declaration of the Rights and Duties of Man (Article 1); American Convention on Human Rights (Article 4); Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women &#8220;Convention of Bel\u00e9m do Par\u00e1&#8221; (Article 4).\u00a0 While the United States has not ratified all of these treaties, they can still inform the definition of what activities customary international law would consider to be extrajudicial killing.<\/p>\n<p><a href=\"#_ftnref44\" name=\"_ftn44\">[44]<\/a>U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, <em>Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions on a gender-sensitive approach to arbitrary killings<\/em>, para 97, U.N. Doc. A\/HRC\/35\/23 (June 6, 2017).<\/p>\n<p><a href=\"#_ftnref45\" name=\"_ftn45\">[45]<\/a> U.N. Special Rapporteur on summary or arbitrary executions, <em>Summary or arbitrary executions<\/em>, para 96, U.N. Doc. E\/CN.4\/1984\/29 (Feb. 21, 1984).<\/p>\n<p><a href=\"#_ftnref46\" name=\"_ftn46\">[46]<\/a> U.N. Special Rapporteur on summary or arbitrary executions, <em>Summary or arbitrary executions, <\/em>para. 150, E\/CN.4\/1986\/21 (Feb. 7, 1986).<\/p>\n<p><a href=\"#_ftnref47\" name=\"_ftn47\">[47]<\/a> <em>Id.<\/em> at para 175.<\/p>\n<p><a href=\"#_ftnref48\" name=\"_ftn48\">[48]<\/a> Case of Gul v. Turkey \u00b6 80, Application no. 22676\/93 (2000), http:\/\/hudoc.echr.coe.int\/eng?i=001-59081.\u00a0 These cases may be differentiated from Mamani because Mamani is investigating personal liability, while these regional courts assess state liability.<\/p>\n<p><a href=\"#_ftnref49\" name=\"_ftn49\">[49]<\/a> Case of the Caracazo v. Venezuela, Judgment (Reparations and Costs) (2002), http:\/\/www.corteidh.or.cr\/docs\/casos\/articulos\/Seriec_95_ing.pdf<\/p>\n<p><a href=\"#_ftnref50\" name=\"_ftn50\">[50]<\/a> McCann v. United Kingdom, \u00b6 166 Eur. Ct. H.R. (ser. A) (1995).<\/p>\n<p><a href=\"#_ftnref51\" name=\"_ftn51\">[51]<\/a> <em>Id. <\/em>at \u00b6 200, 324.<\/p>\n<p><a href=\"#_ftnref52\" name=\"_ftn52\">[52]<\/a> International Committee of the Red Cross, Practice Relating to Rule 11. Indiscriminate Attacks, https:\/\/ihl-databases.icrc.org\/customary-ihl\/eng\/docs\/v2_rul_rule11.<\/p>\n<p><a href=\"#_ftnref53\" name=\"_ftn53\">[53]<\/a> Restatement (Third) of Foreign Relations Law of the United States \u00a7702, cmt. f (Am. Law Inst. 1987).<\/p>\n<p><a href=\"#_ftnref54\" name=\"_ftn54\">[54]<\/a> US Bureau of Democracy, Human Rights and Labor, U.S. Dep\u2019t of State, Country Report on Human Rights Practices 2000, Appendix A: Notes on the Preparation of the Reports (Feb. 23, 2001).<\/p>\n<p><a href=\"#_ftnref55\" name=\"_ftn55\">[55]<\/a> H.R. Rep. 100-693, at 1 (1989).<\/p>\n<p><a href=\"#_ftnref56\" name=\"_ftn56\">[56]<\/a> Judgment, <em>Mucic et al<\/em>, (IT-96-21-T), Trial Chamber, 16 November 1998, para. 488.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>By Lindsay Bailey[1]\u00a0 I.\u00a0Introduction In most cases of extrajudicial killing, the intent is clear.\u00a0 A trigger is pulled or a 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