9th Circuit: Falun Gong Can Move Ahead With Human Rights Suit Against Cisco

In Doe I v. Cisco Systems, Inc., (9th Cir., July 7, 2023), the U.S. 9th Circuit Court of Appeals in a 93-page opinion, held that Falun Gong victims of human rights abuses carried out by China can move ahead with claims against Cisco Systems and its executives for their assistance that enabled China to carry out monitoring of Internet activity by Falun Gong members. The court said in part:

Plaintiff-Appellants are practitioners of Falun Gong, a religion originating in China in the 1990s. They allege that they or family members are victims of human rights abuses committed by the Chinese Communist Party and Chinese government officials. The alleged abuses, Plaintiffs contend, were enabled by the technological assistance of Defendants, U.S. corporation Cisco Systems, Inc., and two Cisco executives....

Plaintiffs initiated this lawsuit more than a decade ago, alleging that Cisco aided and abetted or conspired with Chinese officials in violation of the Alien Tort Statute, the Torture Victim Protection Act of 1991 ... and other federal and state laws. Specifically, Plaintiffs contend that Cisco, operating largely from its corporate headquarters in California, “designed, implemented and helped to maintain a surveillance and internal security network” for Chinese officials, greatly enhancing their capacity to identify Falun Gong practitioners and ensnare them in a system of physical and mental torture, forced labor, and prolonged and arbitrary detention. 

... We once again recognize aiding and abetting liability under the ATS ... and hold Plaintiffs’ allegations against corporate defendant Cisco sufficient to meet the applicable aiding and abetting standard. We also conclude that this case involves a permissible domestic application of the ATS against corporate defendant Cisco, because much of the corporation’s alleged conduct constituting aiding and abetting occurred in the United States. Finally, we reverse the district court’s dismissal of the claim under the TVPA against Chambers and Cheung, as the TVPA does provide a private right of action against those who aid and abet torture, and the allegations against [Cisco executives] Chambers and Cheung are sufficient to meet the aiding and abetting standard.

NTD reports on the decision.

Certiorari Denied In Scientology Arbitration Case and Falun Gong Leafleting Case

Today's 48-page Order List from the U.S. Supreme Court on its opening day of the term includes the denial of review in two cases of interest:

Church of Scientology v. Bixler (Docket No. 22-60, cert. denied 10/3/2022): In the case, a California state appellate court held that former Church of Scientology members were not bound by their agreement to submit all disputes with the Church to the Church's Religious Arbitration system when the dispute involves conduct that occurred after plaintiffs left the Church. (See prior posting.)

Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc. (Docket No. 21-1429, cert. denied 10/3/2022) and Chinese Anti-Cult World Alliance, Inc. v. Zhang Jinrong (Docket No. 21-1556, cert. denied 10/3/2022)- In the case the 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” In addition, the cross-petition for review raised the issue of the validity of the statute under the commerce clause. (See prior posting.)

Certiorari Filed On Whether Falun Gong Tables Are Protected Under FACEA

A petition for certiorari (full text) was filed yesterday in Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (Docket No. 21-1429, filed 5/10/2022). In the case, the U.S. 2nd Circuit Court of Appeals held that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship" under the Freedom of Access To Clinics Entrances Act that prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.” (See prior posting.) [Thanks to James A. Sonne for the lead.]

2nd Circuit: Protesters' Sidewalk Tables Were Not A "Place of Worship" Under FACEA

A provision (18 USC §248) in the Freedom of Access to Clinic Entrances Act of 1994 (“FACEA”) prohibits intentionally injuring, intimidating, or interfering with anyone who is exercising 1st Amendment religious freedom rights “at a place of religious worship.”  In Zhang Jingrong v. Chinese Anti-Cult World Alliance, Inc., (2nd Cir., Oct. 14, 2021), the U.S. Second Circuit Court of Appeals held that "a place of religious worship" in the statute is limited to "a place recognized or dedicated as one primarily used for religious worship", and not merely any place where religion is practiced.  Applying this definition, the court concluded that five tables on the sidewalk in Flushing, Queens, New York where Falun Gong adherents passed out flyers and displayed posters were not a "place of religious worship." The court said in part:

Plaintiffs and their fellow practitioners treated the tables primarily as a base for protesting and raising public awareness about the Chinese Communist Party’s alleged abuses against Falun Gong, rather than for religious worship. Nor was there evidence that the Falun Gong religious leadership had designated the tables as a place primarily to gather for or hold religious worship activities.

Judge Walker filed a concurring opinion arguing that 18 USC §248 exceeds Congress Commerce Clause power, saying in part:

In prohibiting violence against worshippers at places of religious worship, FACEA regulates local, non-economic conduct that has at best a tenuous connection to interstate commerce.

Courthouse News Service reports on the decision.

2nd Circuit: No Amended Complaint In Falun Gong Torture Lawsuit

In Chen Gang v. Zhao Zhizhen, (2d Cir., Jan. 13, 2020), the U.S. 2nd Circuit Court of Appeals agreed with the district court holding plaintiffs cannot file a third amended complaint in their long-running lawsuit. In the suit, originally filed in 2004, plaintiffs representing a class of Falun Gong practitioners claimed that defendant used his influential position in China to encourage persecution of Falun Gong members there. The motion came after dismissal of plaintiffs' earlier complaint alleging aiding and abetting and conspiracy in violation of the Torture Victim Protection Act. Washington Post reported on the decision.

Falun Gong Is A Religion Under FACE Act

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, April 23, 2018), a New York federal district court in an 84-page opinion ruled that a group of Falun Gong adherents may proceed on certain of its causes of action against individuals who have engaged in verbal and physical confrontations with plaintiffs.  The court explains:

Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow Falun Gong.

Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.

One of plaintiffs' claims was brought under the Freedom of Access to Clinic Entrances Act of 1994 which allows a civil action by any person who has suffered physical interference with the exercise of the right of religious freedom at a place of religious worship. The court held that for purposes of this statute, Falun Gong is a "religion":

Expert testimony showed that Falun Gong is at its center concerned with ultimate questions of life and the universe. Dr. Waldron explained his view that Falun Gong is derived from Buddhism and other ancient Chinese religions. There is no genuine dispute for purposes of this case: Falun Gong “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Int’l Soc. For Krishna Consciousness, 650 F.2d at 440 (2d Cir. 1981). Falun Gong is a religion for purposes of the instant litigation. The jury will be so instructed.

Plaintiffs were also allowed to proceed with claims of assault and battery, and bias related intimidation under the New York Civil Rights Act.  Defendants were allowed to move ahead on civil rights and assault and battery counter-claims growing out of the same incidents. New York Law Journal reports on the decision.

9th Circuit Hears Oral Arguments In Falun Gong's Suit Against Cisco

On Tuesday, the U.S. 9th Circuit Court of appeals heard oral arguments (video of full arguments) in Doe v. Cisco Systems, Inc.  In the case, a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. (See prior posting.) Courthouse News Service reports on the oral arguments.

Magistrate Refuses To Dismiss Suit Against Anti-Falun Gong Organization

In Jingrong v. Chinese Anti-Cult World Alliance, 2016 U.S. Dist. LEXIS 16560 (ED NY, Jan. 28, 2016), a group of Falun Gong practitioners in Flushing Queens, New York sued an allegedly virulent anti-Falun Gong organization under federal civil rights laws.The court summarizes facts from plaintiffs' complaint:

Defendant CACWA is a not-for-profit corporation ... [whose] mission is to expose Falun Gong as an evil and dangerous threat to society.... CACWA's printed materials and websites indicate that CACWA was created to wage a "douzheng" campaign against Falun Gong practitioners in New York...  A key objective of a douzheng campaign is the forced conversion of targeted groups by compelling members to renounce their political or religious beliefs, supported by a propaganda campaign which, similar to that which was carried out in Nazi Germany  during World War II, characterizes its victims as appropriate targets of violence and abuse.... Originally initiated in China, the anti-Falun Gong campaign was extended into the United States in 2001 by then Communist Party ("Party") Chief Jiang Zemin.

In this opinion, a New York federal magistrate judge recommends refusing to dismiss plaintiffs' 42 USC Sec. 1985(3) claim, saying in part:

Plaintiffs' claims that they were repeatedly attacked ... make it plausible that Defendants "act[ed] at least in part for the very purpose of," ... infringing on Plaintiffs' right to intrastate travel. In terms of class-based animus, Defendants argue that Plaintiffs "misunderstand Defendants' mission" and describe their disagreement with Falun Gong as a mere difference in ideology.... This position must be rejected at least on this motion to dismiss. Frequent threats to "kill" and "dig out [the] hearts, livers and lungs" of Falun Gong practitioners... and the call for a douzheng campaign against Falun Gong, if true, describe religious-based animus sufficient to pursue a claim under § 1985(3).

The court also recommended refusing to dismiss plaintiffs' claims under 18 USC 248(a)(2) which provides a civil remedy against whomever, "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person lawfully exercising or seeking to exercise the First Amendment right of religious freedom at a place of religious worship." Among other things, the court refused to accept for purposes of a motion to dismiss defendants' argument that Falun Gong is not a "religion."

Plaintiffs Lose Suit Against Cisco For Developing System Used To Track Falun Gong In China

In Doe I v. Cisco Systems, Inc., (ND CA, Sept. 5, 2014), a California federal district court dismissed a lawsuit by Falun Gong practitioners that claimed Cisco aided and abetted and conspired with the Chinese Communist Party and Public Security officers in committing human rights abuses against Falun Gong. Cisco created the Golden Shield security system that was used to intercept and track communications of Falun Gong, leading to their apprehension, arrest and torture. The court dismissed plaintiffs claims under the Alien Tort Statute (ATS), holding that the actions were not suffciently related to the territory of the United States to overcome the presumptions against extraterritorial application of the ATS. It dismissed aiding and abetting claims, finding that it was not shown that Cisco had knowledge that its product would be used for torture and forced conversions.  Courthouse News Service reports on the decision.