Families of rabbis killed in 2014 Israel synagogue attack ask 10th Circuit to revive Palestine Liberation Organization suit

DENVER (CN) — Families who lost loved ones in a 2014 attack on an Israeli synagogue asked the 10th Circuit on Tuesday to revive their civil lawsuit against the Palestine Liberation Organization seeking damages under the Promoting Security and Justice for Victims of Terrorism Act of 2019.

“Who is next, ISIS? The Houthi? These are not actors who are meant to be covered by the due process clause,” argued attorney Asher Perlin on behalf of 70 plaintiffs related to five people slain by members of the Popular Front for the Liberation of Palestine.

On Nov. 18, 2014, two PFLP members killed U.S. citizens and Rabbis Kalman Levine, Aryeh Kupinsky and Moshe Twersky during morning prayers at the Congregation Bnei Torah synagogue in the Har Nof neighborhood of Jerusalem. Police sergeant Zidan Saif and Rabbi Abraham Goldberg were also among the six people killed in the attack.

The attackers, whom PFLP leaders celebrated as heroes, were killed at the scene by police.

More than 70 surviving relatives sued the Palestine Liberation Organization and the Palestine Authority on Nov. 12, 2021, in the U.S. District of Colorado. They claim the Palestinian government and its political arm violated the U.S. Promoting Security and Justice for Victims of Terrorism Act of 2019, which Congress crafted to allow victims of international terrorism to pursue civil damages.

The families claim the defendant groups used a “pay for slay” scheme to incentivize people to carry out terrorist attacks and suicide bombings in exchange for compensation to their families. Congress has declared both the Palestine Liberation Organization and the PFLP terrorist groups.

The 2019 law was passed after courts struck down the 1992 Anti-Terrorism Act, which similarly sought to provide victims’ families a path to pursue civil damages following the 1985 murder of Leon Klinghoffer by the Palestine Liberation Organization.

Both terrorism compensation efforts ran into problems with establishing jurisdiction before a U.S. judge.

U.S. District Judge Gordon Gallagher, a Joe Biden appointee, found the 2019 law did not establish jurisdiction over the foreign entities and dismissed the case. The families appealed.

On appeal, the families pointed to the law’s mechanics of creating consent for jurisdiction, along with the Palestine Liberation Organization’s lobbying efforts establishing a U.S. presence — activities the plaintiffs described as propaganda and the defendants considered a diplomatic mission.

Perlin said the appellate court had many paths to reverse the lower court’s finding.

“The most conventional way to dispose of this case is to find these defendants are subject to jurisdiction,” Perlin argued. “They engaged in lobbying, PR and other messaging activities that worked in injunction with the other terrorism defendants."

For its part the Justice Department, entering as an intervening party, says the lower court ignored the law’s narrow applications and unique triggering events.

“The statute sets out what actions these unique foreign defendants take after a specific date that will be considered consent,” Justice Department attorney Courtney Dixon wrote in a brief.

The law outlined certain actions pursued by the Palestine Liberation Organization, including compensating families of individuals killed or imprisoned in acts of terrorism, then gave a deadline by which to cease the activities, after which consent to jurisdiction would be assumed.

U.S. Circuit Judge Robert Bacharach considered other laws that operate on implied consent, such as traffic laws. “We have to look whether or not a driver used the state highway with the knowing consent to jurisdiction,” the Obama appointee said.

“Let’s say the government says, ‘PA, if you sign a document, you are consenting to jurisdiction within the 50 states.’ Well, the act of signing is equivalent to registering to do business or driving on a highway, so what conceptually is different?” Bacharach asked.

Defense attorney Mitchell Berger countered that people enjoy the benefit of driving on roads when they implicitly consent to jurisdiction, and that the Palestine Liberation Organization received no benefit from the U.S. in exchange for being liable to suit.

“What we don’t have in the PSJVTA today is any antecedent authority,” Berger said. “The law takes conduct that has been found to be insufficient to create jurisdiction, waves the legislative wand and says ‘you have now engaged in jurisdictional conduct.’”

Berger further argued that filing the case in Colorado was strategic forum shopping — a claim Perlin quickly addressed on rebuttal by pointing out the plaintiff who lives in Boulder.

Currently pending as a petition for certiorari via the Second Circuit, Fuld v. Palestine Liberation Organization asks the U.S. Supreme Court to affirm the constitutionality of the Promoting Security and Justice for Victims of Terrorism Act.

Senior U.S. Circuit Judge Bobby Baldock, an appointee of Ronald Reagan, joined the panel alongside Donald Trump-appointed U.S. Circuit Judge Joel Carson.

At the close of the hearing, Bacharach called the arguments extraordinary, but declined to say when or how the panel would decide the case.

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