Tag: aiding and abetting

Postponement of State Court Trial of Ex-Policemen for Killing of George Floyd                 

On January 12, 2022, Hennepin County District Court Judge Peter Cahill postponed the commencement of the state trial of three Minneapolis ex-policemen (J. Alexander Kueng, Thomas Lane and Tou Thao) on charges of aiding and abetting the May 2020 second-degree murder and manslaughter of George Floyd. [1]

The Judge ordered the parties’ attorneys to meet before January 16 to select a new trial date between March 14, 2022 and January 9, 2023. If they cannot agree on a new date, the trial will start on March 7 as previously scheduled.

In the meantime, the three men are scheduled to go on trial in federal court starting January 20 on charges of violating Mr. Floyd’s civil rights during his arrest. If that trial has not concluded by the new date for the state trial, the latter shall be continued on a daily basis until the attorneys are available.

In addition, Judge Cahill stated that in the state case the attorneys should set aside three weeks for jury selection and five weeks for trial testimony.

All of these developments happened after the state court trial, conviction and sentencing of Derek Chauvin to 22.5 years imprisonment for second-degree and third-degree murder and second-degree manslaughter of Mr. Floyd.[2] And then in mid-December 2021 Chauvin unexpectedly pleaded guilty to the federal charges against him over the killing of Mr. Floyd with Chauvin to serve the state and federal sentences concurrently in a federal prison.[3] Thus ended Chauvin’s criminal charges and trials over Floyd’s death.

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[1] Xiong, State trial of three officers charged in George Floyd killing postponed from March date, StarTribune (Jan. 12, 2022); Order Granting Joint Request To Continue Trial Date, State v. Thao, Lane, Kueng, Henn. Cty Dist. Ct., File Nos. 27-CR-20-12949, 12951 & 12953 (Jan. 12, 2022).

[2]  See the “Derek Chauvin State Criminal Trial” and “State Court Sentencing of Derek Chauvin” sections of List of Posts to dwkcommentaries—Topical: George Floyd Killing.

[3] Derek Chauvin Pleads Guilty to Federal Criminal Charges Over Killing of George Floyd, dwkcommentaries.com (Dec. 16, 2021).

Parties’ Latest Reactions to Issues for Trial in George Floyd Criminal Cases

On November 5, the Hennepin County District Court issued five significant orders regarding the joint criminal trial of Derek Chauvin, Thomas Lane, J. Alexander Kueng and Tou Thao over the killing of George Floyd. These orders (1) granted the State’s motion for a joint trial of the four defendants; (2) preliminarily denied the defendants’ motions for change of venue; (3) provided for  juror anonymity and sequestration; (4) allowed audio and video coverage of the trial; and (5) narrowed its previous order regarding four members of the Hennepin County Attorney’s Office’s participation in the cases.[1]

On November 16, various motions and briefs were submitted objecting to the recent orders for a joint trial and allowing audio and video coverage of the trial as well as the pending motions for allowance of evidence of prior incidents of the four defendants and of Mr. Floyd. The most significant of these papers, in this blogger’s judgment, was Thomas Lane’s motion for reconsideration of the order for a joint trial of the four defendants, which, therefore, will be discussed first.

Lane’s Motion To Reconsider Joinder for Trial[2]

Lane argued that the order for joinder is premature as it does not consider the prejudice that will be caused by admission of evidence of prior incidents involving the other three defendants, none of which involved Lane.

Most significantly, Lane asserted that his  defense will be antagonistic to Chauvin in that he will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. (Emphasis added.) (This is believed to be the first time that any of the defendants has pointed the finger at Chauvin, the principal actor in the death of Floyd.)

Moreover, said Lane’s attorney, the Court’s opinion regarding aiding and abetting liability was erroneous since it was inconsistent with a 2014 opinion of the U.S. Supreme Court, which, among other things, said such liability requires the defendant to have “advance knowledge that a crime is being committed.” (Emphasis added.)[3]

Finally, according to Lane’s attorney, a recently disclosed FBI report about its July 8th interview of Hennepin County Medical Examiner, Dr. Andrew Baker, contains significant points helpful to Lane and the other defendants.. Here are this blogger’s extracts of that report with emphasis on the points helpful to the defendants.

  • Baker’s office’s press release about its examination of Floyd’s body apparently mentioned ”cardiopulmonary arrest,” which “for a lay person would be the stopping of the heart and lungs. Other factors that contributed to Floyd’s cardiopulmonary arrest included hypertension, the presence of fentanyl and methamphetamine, as well as arteriosclerotic heart disease.”(P. 038777) (Emphasis added.)
  • “The term ‘complicating’ in the case title was a medical term meaning occurring after, during, or as a result of.” (P. 03877)
  • “Baker defined the mechanism of death as Floyd’s heart and lungs stopping due to the combined effects of his health problems as well as the exertion involved in Floyd’s interaction with police prior to being on the groun” (Pp. 038777-78.) (Emphasis added.)
  • “There was no evidence that Floyd’s airway was literally blocked shut. When viewing the body camera footage, the pressure did not appear to be directly over Floyd’s airway. Floyd would have been unable to speak if pressure was directly over his airway.” (P. 03778.) (Emphasis added.)
  • “Officer Chauvin’s positioning on Floyd’s body does not fit anatomically with occluding Floyd’s airway.” (P. 038778.) (Emphasis added.)
  • “There was no anatomic evidence of injury to Floyd’s neck but that does not rule out that pressure was applied by Chauvin.” (P. 038778.) (Emphasis added.)
  • “The absence of petechiae weighs against strangulation.” (P. 038778.) (Emphasis added.)
  • “Baker noted that that Floyd had no injury to . . .[his lower buttocks or upper end of Floyd’s thigh which were being held by Kueng].” (P. 038778) (Emphasis added.)
  • Baker noted that there was no relation to Floyd’s cause of death by Lane’s position [on Floyd’s feet].” (P. 038778.) (Emphasis added.)
  • “The struggle between officers and Floyd weighed into Baker’s opinion because physical exertion increases heart rate, releases adrenaline, and increases respiratory rate as well as cardiac demand. All of these things increased the likelihood of a bad outcome.” (P. 038778.)
  • “Baker had no opinion on when Floyd became critical or near death.” (P. 038780.) (Emphasis added.)
  • “Baker did not believe that the prone position was any more dangerous than other positions based on an article or journal he had read. “ (P. 038780.) (Emphasis added.)
  • “Baker could not provide an answer on a ‘but for’ cause [of death]. (P. 038781.) (Emphasis added.)
  • “Absent suspicious circumstances, if Floyd had been found dead in his bed with the level of fentanyl in his blood that was present for this autopsy, it may be classified aa fentanyl fatality due to the level of fentanyl.” (P. 039781.) (Emphasis added.)
  • “When a death was labeled a homicide, it was not a legal ruling being made. The label was classified as such for public health reasons.” (P. 0388782.) (Emphasis added.)

Parties’ Battle Over Evidence of Defendants’ Prior Incidents[4]

 The State previously had argued for admission of evidence of eight separate incidents involving Chauvin’s actions in the course of his duties as a Minneapolis Police Officer. On November 16 the State submitted a supplemental argument in support of such evidence in light of its obtaining the body worn camera videos for one of those incidents that are relevant to show modus operandi, intent and lack of mistake and rebut any defense of reasonable use of force and that their probative value outweighs any potential unfair prejudice.

Lane’s objection to such evidence was just discussed.

In addition,  Chauvin’s attorney argued that these incidents are inadmissible to show his intent in the Floyd case or his alleged knowledge of the need to move Floyd from the prone position or a common scheme or plan or modus operandi and that evidence of such incidents is cumulative and unfairly prejudicial.

State’s Objection to Evidence of  Floyd’s Prior Incident with Minneapolis Police[5]

All Defendants intend to offer evidence of George Floyd’s May 6, 2019, incident with the Minneapolis Police Department even though the Court at the September 11, 2020, hearing held that such evidence was inadmissible. The State said the Court’s prior decision was correct and that the defendants intend to offer this evidence at trial was for the improper purpose of attacking Floyd’s character and suggesting he had a propensity to commit crimes or should be punished for his prior actions; that the prior incident does not show Floyd’s common scheme or plan in the incident that led to his death; that his state of mind in the prior incident is irrelevant; that the unfair prejudice of evidence of that prior incident far outweighs its probative value and that the defendants’ other arguments for such evidence are unpersuasive.

State’s Objection to Audio and Video Trial Coverage[6]

The State asked the Court for reconsideration of its order for audio and video coverage of the trial. The motion provided no reasons for that motion other than its previous objection to such coverage under Minnesota Rule of Criminal Procedure 4.02(d) and a brief to be filed on or before November 30.

A StarTribune editorial, however, supported this court order. It said, “It is in the best interest of trial participants and the public for this high-profile trial to be as accessible as possible. . . . [Judge] Cahill’s ruling is well-reasoned and fair.”

Reactions

An important reason for the Court’s November 5th order for a joint trial of the four defendants was there was no indication at that stage of the proceedings “that any of the Defendants is likely to be prejudiced by joinder because their defenses are not antagonistic but instead are mutually supportive.” Now, however, Defendant Lane has stated that his  defense will be antagonistic to Chauvin in that Lane will be “pointing the finger” at Chauvin and that if Lane had known of Chauvin’s prior incidents, Lane would have acted differently. This latest statement, therefore, is a serious challenge to the wisdom of a joint trial.

In addition, Lane’s disclosure of the FBI memorandum of its interview of the Hennepin County Medical Examiner, assuming it accurately reflects what the Examiner said, provides boosters for the defense and problems for the prosecution.

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[1] Court’s Orders Regarding Criminal Trial of Defendants in George Floyd Killing, dwkcommentaries.com (Nov. 5, 2020).

[2]  Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Exhibit A [FBI Memorandum], Lane Objection to Spreigl and Motion to Reconsider Joinder Order,  State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020).

[3]  This case was Rosemond v. United States, 572 U.S. 64 (2014), which requires close analysis.

[4]  State’s Supplemental Memorandum of Law in Support of Other Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Chauvin’s] Objection to State’s Proposed Introduction of Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020); Defendant’s [Kueng’s]Objection to the State’s 404(b) Evidence, State v. Kueng, Court File No. 27-CR-20-12953 Nov. 16, 2020); Defendant’s [Thao’s] Memorandum in Opposition to State’s Motion for Spreigl Evidence Against Mr. Thao, State v. Thao, Court File No. 27-CR-20-12949 Nov. 16, 2020); Defendant’s [Lane’s] Objection to the State’s Spreigl Notice and Motion to Reconsider the Court’s Order for Joinder, State v. Lane, Court File No. 27-CR-20-12951 (Nov. 16, 2020); Jany, Seeking to show pattern of excessive force by Chauvin, prosecutors cite incident with 14-year-old boy who couldn’t breathe, StarTribune (Nov. 17, 2020);Bailey, Former Minneapolis police officer charged in George Floyd’s death seeks to bar evidence of past neck and body restraints, Wash. Post (Nov. 17, 2020).

[5] State’s Response Opposing Defendants’ Motions To Admit Spreigl Evidence, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020).

[6] State’s Motion for Reconsideration, State v. Chauvin, Court File No. 27-CR-20-12646 Nov. 16, 2020) State asks judge to reconsider permission for audio, video coverage of officers’ trial in George Floyd Killing, StarTribune (Nov. 16, 2020); Editorial, A victory for courtroom access in George Floyd case, StarTribune (Nov. 17, 2020).

Court Sustains Most Charges in George Floyd Criminal Cases  

On October 21, Hennepin County District Court Judge Peter Cahill, with one exception, denied the four defendants’ motions to dismiss all criminal charges for alleged lack of probable cause in the George Floyd criminal cases. The exception was the charge of third-degree murder against Derek Chauvin, which was dismissed. These orders and the reasons for same are contained in the Court’s 107-page Order and Opinion on the four defendants’’ motions to dismiss for lack of probable cause.[1]

In so doing, the Court properly stressed that under Minnesota law its evaluation of  these dismissal motions is “to assess whether the State has come forward with sufficient admissible evidence on each element of the charges . . .to warrant binding each of the Defendants over for trial . . . to accept as true all the allegations made by the State in its Statements of Probable Cause . . . [and to] draw in the State’s favor all inferences that may reasonably be drawn from those facts.” (Pp. 7-8.)

Here, we will review the main points in the court’s sustaining the charges of second-degree unintentional murder and second-degree manslaughter against Derek Chauvin and the charges against the other three defendants (Thomas Lane, J. Alexander Kueng and Tou Thau) for aiding and abetting these charges. Discussion of the dismissal of the third-degree murder charge against Chauvin will be left to the newspaper articles that are cited below.

Finding Probable Cause for Charge of Second-Degree Murder Against Chauvin

 Under the above standard for evaluating such dismissal motions, the court concluded that there was probable cause that the prosecution had established probable cause for the following requirements for this crime: (i) Floyd died; (ii) “Chauvin’s conduct was a substantial causal factor in Floyd’s death;” (iii) “Chauvin intentionally inflicted or attempted to inflict bodily harm on Floyd or intended to cause Floyd to fear immediate bodily harm or death;: and (iv) “Chauvin inflicted substantial bodily harm on Floyd.” (Pp. 35-53.)

In the process of reaching these conclusions, the Court said: (i) “Chauvin never relented and never lessened the pressure of his knee against Floyd’s neck even when Floyd pleaded: ‘I can’t breathe. Please, your knew in my neck’’” (p. 39); and (ii) “Notwithstanding Floyd having gone silent and motionless, the mounting evidence of his lost consciousness, the plaintiff cries and demands from the bystanders, and the obvious reality that Floyd was no longer resisting or non-compliant, Chauvin’s demeanor never changed, and he continued kneeling on Floyd’s neck applying constant pressure to pin Floyd’s face to the pavement for an additional two and a half minutes” (p. 41).

These statements followed  the Court’s “Factual Background,” which stated, in part, the following:

  • “The Critical Nine Plus Minutes between 8:19:18 and 8:28:42 P.M.: Floyd Is Subdued and Restrained Prone in the Street, with Chauvin Kneeling on the Back of Floyd’s Neck, Pinning His Face to the Street, Kueng and Lane Restraining and Pinning Floyd’s Back and Legs to the Street, and Thao Maintaining Bystander Watch.” (p. 22).
  • “Floyd uttered his final words ‘Please,’ at 8:23:55 p.m., and ‘I can’t breathe,’at 8:23:59 p.m.. . . Floyd then fell silent.”  (p. 25.)
  • “Even after Floyd ceased talking and moving and went limp, Defendants maintained their positions.” (p. 25)
  • “As Floyd lost consciousness and shortly before uttering his final words, Lane asked Chauvin and Kueng: ‘Should we roll him on his side?’ Citing concern ‘about the exited delirium or whatever . . .[and] Chauvin rejected Lane’s suggestion, stating that the ambulance was en route.” (p. 25)
  • “Neither Lane nor Kueng did anything to challenge Chauvin’s answer. Instead, they remained in the same position and continued to hold down Floyd’s back and legs.” (p. 25)
  • “After hearing the bystanders’ pleas to check Floyd for a pulse [8:25:40-8-8:26:05 p.m.], Lane asked Kueng if he could detect a pulse. After checking Floyd’s wrist for about ten seconds, Kueng reported: ‘I can’t find one [a pulse].[8:25:45-8:26:00].” (p. 27.)
  • “Kueng continued to check Floyd for a pulse. About ten seconds later, Kueng sighed, leaned back slightly, and repeated: ‘I can’t find one.” [8:26:07-12.] (p. 27.)
  • “[8:26:12-18] Upon learning that Keung could not find a pulse, Chauvin squeezed Floyd’s fingers. Floyd did not respond.” (p. 27/)
  • “Even though Floyd remained unresponsive, the Defendants did not move from their positions. They continued to restrain Floyd—Chauvin with his left knee pressed firmly into Floyd’s neck, Kueng kneeling on Floyd’s back, and Lane holding Floyd’s legs—while Thao kept bystanders back on the sidewalk. They also ignored the off-duty firefighter’s urgent demands that they check Floyd for a pulse and begin chest compressions if he had no pulse. . . None of the Defendants ever attempted PR while Floyd was on the ground.” (pp. 27-28)
  • “At 8:27 p.m., an ambulance arrived on the scene. . . . Still, Chauvin, Kueng, Lane, and Thao did not move from their positions. . . . Indeed, even as Lane explained to emergency personnel that Floyd was ‘not responsive right now,’ Chauvin kept his knee on Floyd’s neck (8:27:36-38).” (p. 28)
  • “[F]or more than a minute after the emergency personnel arrived, Chauvin continued to press Floyd face-down into the pavement, Lane knelt over Floyd’s legs, and Thao continued to push back the crowd.” (p. 28)
  • At 8:28:42 p.m., when the stretcher was ready, Chauvin finally stood up, removing his knee from Floyd’s neck. . . .Floyd remained unresponsive.” (p. 28)
  • “In total, Floyd was subdued, pinned face-down in the street—with Chauvin’s knee pressing into his neck and Kueng and Lane restraining his back and legs—for more than nine minutes and twenty seconds.(8:19:18-8:28:42 p.m.) For over four minutes and forty seconds, Floyd did not speak. (8:24:00-8:28:42) For almost three and a half minutes, Floyd appeared not to be breathing. (8:25:15-8:28:42 p.m.) And for more than two and a half minutes, the Defendants were unable to locate a pulse. (8:25:10-8:28:42). Yet over that entire time period, Defendants remained in the same positions: Chauvin continued to kneel with his left knee pressed firmly down on Floyd’s neck pinning Floyd’s face into the street, Kueng and Lane remained atop Floyd’s back and legs, and Thao continued to prevent the crowd of concerned citizens from interceding.” (p. 29)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Murder Against Other Defendants

 Under the previously cited standard for evaluating such dismissal motions, the court concluded “the evidence the State relies upon is sufficient for probable cause purposes for the State’s charges that Thao, Lane and Kueng each independently aided and abetted Floyd’s second-degree unintentional murder by Chauvin.” (p. 79.)

The previously discussed evidence supports a potential jury conclusion “that Lane knew Chauvin was intentionally committing an assault that inflicted substantial bodily harm on Floyd”  and that “Lane  intended to aid Chauvin in the assault on Floyd.” (Pp. 79-91.) The same was true for Kueng (pp 91-94) and Thao (pp. 94-99).

Additional comments on Thao were required because “at no point was he involved in the efforts to physically restrain Floyd. Rather, his role was primarily to maintain watch over the growing crowd of bystanders.”  (Pp. 94-99.) But “a jury could conclude, on the basis of the evidence, that Thao knew that Chauvin was intentionally inflicting substantial bodily harm on Floyd” and that Chauvin’s continuing to kneel on Floyd’s neck for minutes after he had ceased talking, moving, or breathing and knowing that Kueng had not been able to detect a pulse was contrary to MPD policy and could not be a considered a justifiable use of reasonable force.” Moreover, under Minnesota cases, “Active participation in the overt act that constitutes the substantive offense—here, the assault—is not a requirement for aiding and abetting liability” and that “’the lookout’ . . ‘is a classic example’ of an ‘aider and abetter.’”

Finding Probable Cause for Charge of Second-Degree Manslaughter Against Chauvin

 Under the previously cited standard for evaluating such dismissal motions, the court concluded there was sufficient evidence for a jury to conclude that Floyd died and that Chauvin caused that death “by culpable negligence, whereby Chauvin created an unreasonable risk and consciously took a chance of causing death or great bodily harm.” (Pp. 67- 75.)

Finding Probable Cause for Charge of Aiding and Abetting Second-Degree Manslaughter Against Other Defendants

Under the previously cited standard for evaluating such dismissal motions, the court concluded that there was probable cause for the charge of aiding and abetting second-degree manslaughter because there was sufficient evidence for (i) Chauvin’s causing Floyd’s death by culpable negligence, whereby he created and unreasonable risk and consciously took a chance of causing death or great bodily harm; (ii) the other three defendants “knew Chauvin by his culpable negligence, created an unreasonable risk and consciously took a chance of causing death or great bodily harm; “ and (iii) the other three defendants “intended that . . .[their] presence or actions aided Chauvin’s commission of that crime.” (Pp.  99-107)

Conclusion

To this retired lawyer bystander, this Order and Memorandum is exceptionally well reasoned, documented and written. Moreover, I think it implicitly signals that the Judge will deny the defense motions to change venue (unless the demonstrations and protests get further out-of-line) and grant the prosecution’s motion for a joint trial of the four cases. An implicit or explicit consideration for Judge Cahill’s deciding the change of venue motions by the four defendants would have to be not wanting to impose the immense burden that would be placed on another district court in the state in taking on this complex case in which so much already has happened.

If I were representing one of these defendants, I would be very worried about my chances for success at trial.

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[1] Order and Memorandum Opinion on Defense Motions To Dismiss for Lack of Probable Cause, State v. Chauvin, Court File No. 27-CR-20-12646 (Hennepin County District Court (Oct. 21, 2020); Xiong, Ex-Minneapolis police charged in George Floyd’s killing will go to trial; one count against Derek Chauvin dropped, judge rules, StarTribune (Oct. 22, 2020); Assoc. Press, Judge Dismisses a Third-Degree Murder Charge in George Floyd’s Death, W.S.J. (Oct. 22, 2020); Ismay, Judge Dismisses Third-Degree Murder Charge in George Floyd Case, N.Y. Times (Oct. 22, 2020);  Bailey, Judge dismisses third-degree murder charge against officer in George Floyd’s death: upholds more serious charge, Wash. Post (Oct. 22, 2020).

 

 

 

 

 

 

 

 

 

 

Ex-Officer Thao Moves for Dismissal of Criminal Charges for George Floyd Killing

On July 29, attorneys for ex-officer Tou Thau filed a motion for dismissal of the criminal charges of aiding and abetting the May 25th killing of George Floyd. The attorneys argue the prosecutors had failed to show that Thao knew that Chauvin and the other officers were going to commit a crime and  that Thao’s presence or actions at the scene were done “to further commission of that crime.”[1]

The prosecution’s response is due August 17 with the hearing on the motion set for September 11. Also to be heard at that hearing is a similar dismissal motion by ex-officer Thomas Lane.[2]

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[1] Furst, Tou Thao seeks dismissal of charges in George Floyd’s killing, StarTribune (July 30, 2020); Assoc. Press, Ex-Minneapolis cop argues for dropped charges in Floyd death, mprnews.org (July 29, 2020).

[2]  Ex-Officer Lane Moves for Dismissal of Criminal Charges for George Floyd Killing, dwkcommentaries.com (July 9, 2020).

 

Second Circuit’s Decision in Kiobel Rejecting Corporate Liability for Assisting Foreign Human Rights Violations

In September 2010 the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Pet. Co., 621 F.3d 111 (2d Cir. 2010), rejected corporate liability in a civil case for money damages under the U.S. Alien Tort Statute (ATS), 28 U.S.C. § 1350. As mentioned in a prior post, this issue in this case will be the subject of a hearing before the U.S. Supreme Court on February 28th.

Subject-matter Jurisdiction

The Second Circuit in an opinion by Judge Cabranes in Kiobel first held, without much discussion, that the ATS incorporates any limitation arising from customary international law on whom may properly be sued as a defendant under the statute and that this was a requirement for subject-matter jurisdiction of the federal courts. No other circuit court, however, has come to this conclusion about such jurisdiction.

This was an important conclusion because federal courts are courts of limited jurisdiction requiring such courts always to determine if they have such jurisdiction and prohibiting the litigating parties from conferring such jurisdiction on the courts by not themselves raising problems over such jurisdiction. This conclusion enabled Judge Cabranes to raise, discuss and decide the issue of corporate liability under the ATS in this case even though it had not been briefed or argued by the parties themselves.

As mentioned in a prior post, the Supreme Court will be examining the correctness of this conclusion by the Second Circuit in this case.

Corporate Liability under ATS

Most of the lengthy opinion by Judge Cabranes held (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. The court, therefore, ruled that the complaint against a corporation had to be dismissed.

Important for the latter conclusion was the court’s view that international criminal tribunals starting with the Nuremberg Tribunal after World War II only imposed criminal sanctions on individuals for violating international legal norms. Other such tribunals, said the Second Circuit, were the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court (ICC).

The Second Circuit stressed the ICC’s Rome Statute’s limitation of jurisdiction in Article 25(1) to “natural persons.” Equally important for the Second Circuit was the Rome Conference’s development of the ICC’s Rome Statute and the Conference’s rejection of a French proposal to include corporations and other “juridical” persons in the ICC’s jurisdiction because, according to commentators, corporate criminal liability was rejected by many national legal systems and thus such inclusion in the Rome Statute would eliminate the possibility of national systems’ preempting ICC jurisdiction under the principle of complementarity.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. (The important issue of the proper legal requirements for aiding and abetting liability will not be before the Supreme Court in this case on February 28th.)

Judge Leval, however,  concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability.

Judge Leval acknowledged that the ICC’s jurisdiction was limited to “natural persons” and that the Rome Conference had rejected the idea of extending the ICC’s jurisdiction to corporations and other legal entities. This structure, said Judge Leval, was due to a belief that a corporation could not act with the requisite criminal intent and the inefficacy of criminal punishment for such entities. On the other hand, Judge Leval quoted the Chairman of the Rome Statute’s Drafting Committee as saying that despite the diversity of views about corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or public, can, through its policies or actions, transgress a norm for which the law, whether national or international, provides, at the very least damages.”

Conclusion

As was noted by the Supreme Court itself in stating the second of the two issues to be argued on February 28th, the U.S. Court of Appeals for the 11th Circuit has disagreed with the Second Circuit on the issue of corporate liability under the ATS. Moreover, three other circuit courts–the 7th, the 9th and the District of Columbia Circuits–also have decided that corporations may be held liable under the ATS.[1]

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[1] An earlier version of this paper appeared in the blog of the American Non-Governmental Organizations Coalition for the International Criminal Court (AMICC).