Doe v. Liu QiChina: Torture and Religious Persecution
In February 2002, CJA filed a civil suit against Liu Qi, mayor of Beijing, for the torture and persecution of Falun Gong practitioners by the Beijing police. Liu Qi was served with the complaint at San Francisco International Airport. When he failed to respond, CJA filed a motion for default judgment. After considering statements of interest filed by the US and Chinese governments, Judge Claudia Wilken of the U.S. District Court for the Northern District of California entered a default judgment against Liu Qi for overseeing the torture, arbitrary detention and sexual assault of our clients.
Since Premier Jiang Zemin launched a crackdown on the Falun Gong in July 1999, tens of thousands of Chinese citizens have been detained. Thousands have been tortured, sent to labor "re-education" camps without trial, and illegally incarcerated in mental institutions. Several have been killed while in police custody. In early 2002, CJA joined the effort to help end the state-sponsored repression of Falun Gong practitioners by filing a civil suit against Liu Qi, the Mayor of Beijing and President of the Beijing Organizing Committee for the 2008 Olympic Games, for the notoriously brutal crackdown that occurred in preparation for the 2008 Beijing Olympics.
As Mayor of Beijing, Liu Qi had the authority to formulate security policy as well as to supervise and discipline police forces under his executive control. During Liu Qi’s tenure in office, CJA’s clients – all practitioners of Falun Gong – were beaten, sexually assaulted and tortured by electric shock and forced feedings by officers of the Beijing police. Not only did Mayor Liu fail to comply with his international obligation to take reasonable measures to stop or prevent the torturous practices of security agents under his authority, but he formulated a policy authorizing such conduct and incited police forces to violently repress the Falun Gong religious movement. On example, out of many, occurred at a public rally in 1999, where Mayor Liu declared that he would "resolutely smash" the Falun Gong.
In early February 2002, CJA received information that Liu Qi would be visiting San Francisco. CJA quickly consulted with human rights activists working on China and was advised that Liu Qi held superior authority over the Beijing police forces responsible for brutal measures against Falun Gong practitioners. On February 7th, CJA filed a complaint against the Mayor with the U.S. District Court for the Northern District of California. The complaint was served on Liu Qi at San Francisco International airport.
CJA's complaint cites Chinese law that grants the Mayor executive and disciplinary authority over local police forces and charges him with liability, under the theory of command responsibility, for torture; cruel, inhuman and degrading treatment; crimes against humanity; and violation of the right to freedom of religion and belief. The plaintiffs are two female Chinese citizens who obtained asylum in the U.S., and four citizens of the U.S., Israel, France and Sweden.
Motion for Default Judgment
Liu Qi failed to respond to the complaint, and made no appearance in the case, nor has anyone acting on his behalf been in contact with CJA. Accordingly, CJA filed papers to obtain a default judgment. At a hearing on May 1st, 2002, Magistrate Ed Chen requested briefing on several issues, including whether the suit was barred by the Foreign Sovereign Immunities Act (FSIA) or the act of state doctrine.
Opinions of the U.S. State Department and the Chinese Government
Magistrate Judge Chen also invited the U.S. Department of State to comment on these issues and to solicit the views of the Chinese government. Both the Chinese government and State Department submitted statements urging that the case be dismissed. The State Department stated, among other things, that the suit risked interfering with the U.S. Government's relations with China, and raised the possibility of retaliatory suits by other countries against U.S. officials. CJA submitted a response to the State Department's concerns on October 21, 2002.
Report and Recommendation on the Motion for Default Judgment
On October 28, 2004, Judge Chen issued his Report and Recommendation on CJA’s motion for default judgment against Liu Qi. In his report, Judge Chen rejected several of the arguments put forward in the State Department’s Statement of Interest in the case. Specifically, Judge Chen held that Liu Qi did not enjoy sovereign immunity under the Foreign Sovereign Immunities Act. Judge Chen found that, because Liu Qi violated Chinese law, he acted outside the scope of his authority even though his acts were “authorized” by a covert unofficial government policy of torture. As a consequence, Judge Chen ruled that Liu Qi is not entitled to sovereign immunity, since the FSIA only shields officials acting within the scope of their authority, notwithstanding the State Department’s arguments to the contrary.
In making his finding, Judge Chen relied on an affidavit by Professor Robert Berring that stated that the Chinese constitution and criminal procedure laws “specifically prohibit arbitrary detention, physical abuse and torture of detainees.”
Although he gave some deference to the State Department’s claim that the suit interferes with U.S. foreign relations, Judge Chen rejected the State Department’s suggestion that the case be dismissed under the act of state doctrine. Rather, Judge Chen found that imposing declaratory relief against Liu Qi would alleviate any foreign policy concerns. He therefore recommended that District Judge Claudia Wilken enter a default judgment against Liu Qi on the torture and arbitrary detention claims of Plaintiffs Jane Doe I and Jane Doe II and, due to the sexual assault she suffered, on the cruel, inhuman or degrading treatment claim of Plaintiff Helene Petit.
Judge Wilken adopted Judge Chen’s report and recommendation on December 8, 2004. On the same day, she entered a default judgment against Liu Qi. With the judgment, Judge Wilken declared that Liu Qi had violated the rights of Jane Doe I and Jane Doe II “to be free from torture and arbitrary detention” and the right of Petit to be “free from cruel, inhuman or degrading treatment.”