U.S. appeals court rules against former Bolivian president and defense minister over 2003 massacre

HLS litigation team has been pursuing justice for victims of extrajudicial killings for more than a decade

On August 3, the U.S. Court of Appeals for the Eleventh Circuit vacated a trial court judgment that had been entered in favor of Bolivia’s former president, Gonzalo Sánchez de Lozada, and former defense minister, José Carlos Sánchez Berzaín, for the massacre of unarmed Indigenous people in 2003.

For more than a decade, Harvard Law School’s International Human Rights Clinic has been pursuing justice for indigenous people killed during “Black October” 2003, when the Bolivian government violently repressed a popular protest against government policies.

In 2018, a jury found the former officials liable under the Torture Victims Protection Act (TVPA) and awarded plaintiffs $10 million in damages after a month-long trial that included six days of deliberations. The trial marked the first time in U.S. history that a former head of state sat before his accusers in a U.S. human rights trial.

In an unusual move, a month later the trial court set aside the jury verdict and entered its own judgment holding the defendants not liable based on insufficient evidence. In November 2019, two of the plaintiffs, whose young daughter had been killed by soldiers in the massacre, traveled to Miami to have their appeal heard. The Court of Appeals vacated the district court’s judgment and remanded the case to the district court for further proceedings. In addition, the Court of Appeals held that plaintiffs were entitled to a new trial on related wrongful-death claims because the district court had abused its discretion in admitting certain evidence that was favorable to the defendants.

“This is such wonderful news,” said Sonia Espejo, whose husband Lucio was killed in the 2003 Massacre. “We have fought for so long. We will continue fighting, but for today, I feel happy. I feel calm.”

“This is an important moment in the struggle for accountability, not just for the families, but for all of Bolivia,” said Thomas Becker ’08 of the International Human Rights Clinic at Harvard Law School. “Today is a victory for human rights.”

Eloy and Etelvina Mamani

Eloy and Etelvina Mamani, two plaintiffs whose 8 year old daughter was killed in the 2003 massacre speak with press, following the appeal in Miami in November 2019.

The appellate court held that plaintiffs provided sufficient evidence that “soldiers deliberately fired deadly shots with measured awareness that they would mortally wound civilians who posed no risk of danger. None of the decedents were armed, nor was there evidence that they posed a threat to the soldiers. Many were shot while they were inside a home or in a building. Others were shot while they were hiding or fleeing.”

The appellate court vacated the lower court’s judgment and remanded the case to the district court to (i) decide whether the jury verdict should be reinstated under the proper standard, and (ii) hold a new trial on plaintiffs’ related wrongful death claims.

In September and October 2003, acting under the authority of Sánchez de Lozada and Sánchez Berzaín, the Bolivian military killed 58 of its own citizens and injured more than 400, almost all of them from indigenous communities, during a period of civil unrest known as the “Gas War.” Among those killed were an eight-year-old girl, a pregnant woman (whose fetus also died), and elderly people. After the massacre, Sánchez de Lozada and Sánchez Berzaín fled to the United States, where they have lived since. Former military commanders and government officials who acted under the authority of the two men were convicted in Bolivia in 2003 for their roles in the killings. Sánchez de Lozada and Sánchez Berzaín were indicted in the same case but could not be tried in absentia under Bolivian law.

The case was brought by the family members of eight people killed during the massacre, among them Etelvina Ramos Mamani and Eloy Rojas Mamani, whose eight-year-old daughter Marlene was killed in front of her mother when a single shot was fired through the window; Teófilo Baltazar Cerro, whose pregnant wife Teodosia was killed after a bullet was fired through the wall of a house; Felicidad Rosa Huanca Quispe, whose 69-year-old father Raul was shot and killed along a roadside; and Gonzalo Mamani Aguilar, whose father Arturo was shot and killed while tending his crops.

Eloy and Etelvina Mamani with Thomas Becker

Eloy and Etelvina Mamani with Thomas Becker ’08.

“We are elated that the families who lost loved ones in the 2003 massacres have won this important victory,” said Beth Stephens, a cooperating attorney with the Center for Constitutional Rights.

At the three-week trial, a former soldier in the Bolivian military testified that he was ordered to shoot at “anything that moves” in a civilian community. Another witnessed a military officer kill a soldier for refusing to follow orders to shoot at unarmed civilians. Witnesses also recounted that tanks rolled through the streets and soldiers shot for hours on end, including into homes and at fleeing, unarmed civilians. Despite all the testimony, in setting aside the jury’s verdict the trial judge concluded that there was insufficient evidence to hold the defendants liable for extrajudicial killings. The case, Mamani v. Sánchez de Lozada and Sánchez Berzaín, was filed in 2007 under the TVPA, which allows damages to be recovered in U.S. federal courts for extrajudicial killings. The case alleged that Sánchez de Lozada and Sánchez Berzaín planned and ordered the killings.

“Akin Gump’s pro bono practice has been honored to work with these Bolivian families for more than 13 years,” said Akin Gump Strauss Hauer & Feld LLP Pro Bono Partner Steven Schulman. “We are gratified that the Eleventh Circuit carefully reviewed the evidence we presented at trial and agreed that the District Court should not have displaced the jury’s verdict as it did.”

The family members are represented by a team of lawyers with the Center for Constitutional Rights, Harvard Law School’s International Human Rights Clinic, and the law firms of Akin Gump Strauss Hauer & Feld LLP, and Schonbrun, Seplow, Harris & Hoffman, LLP.

For more information, visit the Center for Constitutional Rights’ case page.