# Boim v. Holy Land Foundation for Relief & Development

> Court of Appeals for the Seventh Circuit · December 28, 2007 · 511 F.3d 707

URL: https://www.frixlaw.com/law-library/cases/9558255

## Case

- **Full name:** Stanley BOIM, Individually and as Administrator of the Estate of David Boim, Deceased, and Joyce Boim, Plaintiffs-Appellees, v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT, Et Al., Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** December 28, 2007
- **Citations:** 511 F.3d 707; 2007 U.S. App. LEXIS 29864
- **Precedential status:** Published
- **Opinion:** Concurring in part by Evans
- **Judges:** Rovner, Wood, Evans
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9558255

## How later opinions describe it (automated extraction)

- reaffirming elements of aiding and abetting as stated in the first Boim case

## Opinion text

EVANS, Circuit Judge,
concurring in part and dissenting in part.
My review of this case causes me to conclude, as did Judge Keys, that the undisputed facts show that Hamas and its agents were responsible for the murder of David Boim. Furthermore, I cannot conclude that the judge failed to require a causal link between the defendants and the terrorist attack. For those reasons, I respectfully dissent, except as to the reversal of the judgment against the Holy Land Foundation. Given that the reader is probably suffering fatigue at this point, I will be brief.
As we made quite clear in Boim I, Congress intended for liability under § 2333 to attach “not only to the persons who committed terrorist acts, but to all those individuals and organizations along the causal chain of terrorism.” That was the basis for our conclusion that, under the statute, liability attached to those who aided and abetted terrorist acts.
But exactly what that means is the problem. As the majority correctly states, it is “both a fair inference — and undisputed— that the murder of David Boim constitutes an act of international terrorism” and that he and his parents suffered injury. The majority also says that the individuals who killed him and Hamas (if the murder was committed “at its behest or with its sup *758 port”) would be liable to the Boims. But, the majority says,
what has been vigorously disputed from the inception of this litigation is whether and under what circumstances persons and groups who allegedly have provided money and other support to Hamas (directly arid indirectly) may also be liable for David’s murder.
Clearly, Boim I settles the question of “whether”; the problem arises on the question “under what circumstances.”
The majority says that in a “profound misreading” of Boim I, the district court (and the Boims) said that proof of cause-in-fact was not necessary but rather that proximate cause (i.e., foreseeability) was sufficient to establish liability. I do not agree that the district court failed to consider causation. I’ll explain in a moment, but first, a slight detour.
The immediate cause-in-fact of the injury here was that two men gunned David down in what can only be considered a terrorist act. My first departure from the majority is in its apparent conclusion that the Boims failed to show that the two gunmen — Al-Sharif and Hinawi — and Ha-mas were in fact responsible for the murder, as AMS and IAP concede. I disagree with the majority’s rejection of the expert opinion of Dr. Ruven Paz and the other evidence on which the district court relied in concluding that Hamas was, in fact, responsible for a murder it publicly took responsibility for. Dr. Paz is a former member of the Israeli security community who is an expert in terrorism in the Arab world and is fluent in Arabic. In reaching his conclusions, he analyzed many sources of data, including Web sites controlled by Hamas and documents related to Hinawi’s trial and sentencing for Boim’s murder. It seems particularly absurd for us to reject, as an underpinning for an expert opinion, what he believes to be the official verdict against Hinawi in this matter. That it is written in Arabic is not at all surprising to me. As to the use of Web sites, Dr. Paz explains that
Web sites of Islamic movements and terrorist organizations have long been accepted as important sources of information for scholars in this field, as well as for intelligence organizations and the press. The terrorist organizations rely on web sites to deliver their messages to their adherents and the general public. The United States Institute for Peace, a non-partisan federal institution created by Congress, has recently published an extensive report on the use of the internet by terrorists.
Dr. Paz attaches the report.
Furthermore, while defendants pick at the evidence the Boims have presented of Hamas involvement in David’s murder, no defendant has produced any evidence which disputes Hamas’s involvement. Looking at the issue de novo, I conclude— as did the district court — that the gunmen (Hinawi and Al-Sharif) and Hamas were the direct cause of the injury to the Boims.
But QLI argues that the finding that Hamas is responsible cannot be applied to it because it did not have a chance to litigate the issue. That is nonsense. QLI moved for summary judgment. In response, the Boims submitted a statement of facts, in which they produced evidence that Hamas was responsible for the murder. QLI could have offered evidence in response. Furthermore, at trial (when the judge instructed the jury that Hamas had been found responsible for the murder), QLI, who declined to participate in the trial because the judge did not grant a continuance, obviously did not object to the instruction. Therefore, the issue is waived. QLI cannot escape its waiver because it refused to participate in the trial. *759 Such behavior does not relieve one from the ordinary requirements of litigation.
I will now return to my main point and what the majority seems most concerned about — that is, what needs to be proven to establish that in fact the defendants before us aided the terrorists. The majority refers to this requirement variously as cause-in-fact, direct cause, factual cause, causal chain, and causal link. No one would seriously dispute that there must be a causal link between the defendants and the terrorist act. A person or entity knowingly giving money to another terrorist group is not responsible for a murder committed by agents of Hamas.
But just what does “causal link” mean in this context, and how must one prove that the link exists between the defendants and Hamas? The majority wisely declines to set up an absurd requirement that the money given to Hamas by the defendants must be traced directly to, say, purchasing the gun used in the attack. Money, the majority recognizes, is fungible. At times, though, it seems that the majority is requiring a pretty clear trail leading from a defendant to the specific act which caused David’s death. For instance, the majority says that what “is strikingly absent from the district court’s analysis is any consideration of a causal link between the assistance that the court found AMS/IAP to have given Hamas and the murder of David Boim.” The majority also says that “there must be proof that the defendant aided and abetted [Hamas] in the commission of tortious acts that have some demonstrable link with David Boim’s death.” But then there is the statement that “[n]othing in Boim I demands that the plaintiffs establish a direct link between the defendants’ donations (or other conduct) and David Boim’s murder....”
The majority’s bottom line, with which I do not disagree, assuming I read it correctly, seems to be that what must be shown is that the defendant established a funding network or provided “general support” for terrorist activities; if that is established, then the fact finder could infer that establishing the network was a cause of Hamas terrorism. That is especially true if the funding was within a reasonable time of the terrorist act and if it was significant. In the words of the majority,
if an individual or organization established a funding network in the United States designed to provide ongoing financial support for Hamas’s terrorist activities, a factfinder might reasonably infer that the act of establishing that network was a cause of ensuing acts of Hamas terrorism, even if no line could be drawn linking a particular dollar raised to a particular terrorist act.
Further,
Terrorist acts that follow within a reasonable time the donations and other support provided by a defendant to the perpetrators of those acts could be deemed to have been caused by those acts; and the more significant the support provided by a defendant, the more readily one might infer that support was a cause of later terrorist acts.
As an aside, two minor points: The refer-, ence to significance seems strange in light of other statements that even small contributions are sufficient. And there would seem to be no problem with timing in this case.
Where I part company with the majority is that I see nothing in the explanation of how to show a causal link that adds in any realistic sense to what Judge Keys required. I cannot see that he failed to consider whether there was a causal link. The statement that prompted the majority to believe that the court appears to have said that no such causal link was required is the following:
*760 The Seventh Circuit did not say that, to impose liability under § 2333, the Boims have to link Mr. Salah or any of the other defendants specifically to the attack that killed David Boim; rather, the court held that, to impose liability for aiding and abetting — that is, providing material support to — a terrorist organization, the Boims need only show that the defendants knew of Hamas’ illegal activities, that they desired to help those activities succeed, and that they engaged in some act of helping.... The evidence shows that all three are true with respect to Mr. Salah and no reasonable jury could find otherwise.
Boim v. Quranic Literacy Inst., 340 F.Supp.2d 885, 923 (N.D.Ill.2004).
As I read the first part of this statement, the judge is saying there is no need for a direct link from Salah’s activities to the specific attack that killed David Boim. But how is that different from what the majority says? And in fact the majority says that what Judge Keys said was not wrong:
Nothing in Boim I demands that the plaintiffs establish a direct link between the defendants’ donations (or other conduct) and David Boim’s murder — that they funded in particular the terrorists who killed David Boim, for example.... In that respect, the district court was no doubt correct when it said that the Boims need not link the defendants specifically to the attack on David Boim.
Later, the majority reiterates that the judge was correct that a “direct link between Salah’s actions and the killing of David Boim need not be shown.” But, the majority continues, indirect causation is required and “Boim I certainly did not relieve the plaintiffs of establishing some form of causal link between a defendant’s actions and David Boim’s murder.”
As to the causal link, it seems to me that there is, at best, only a semantic difference between what the majority requires and what Judge Keys spent pages and pages examining. To reiterate, the majority says that what is required is, for instance, a funding network providing financial support of Hamas’s terrorist activities, or other “general support” from which one can infer that the network was a cause of the acts of terrorism. By way of example, the majority said:
Proof that HLF was funding Hamas’s terrorist activities at the time of Boim’s murder, and that another defendant was in turn funneling donations to HLF with the knowledge and intent that those funds be used to support Hamas’s terrorism, might support an inference that the actions of both HLF and that defendant were causes of the murder.
Judge Keys said more than once that the Boims needed to show “that the defendants knew of Hamas’ illegal activities, that they desired to help those activities succeed, and that they engaged in some act of helping.” Emphasis added. 340 F.Supp.2d 885 at 923 . 1 It seems to me that engaging in “some act of helping” is the same as providing funding or other general support to Hamas. It is precisely “financial support” or “general support” that Judge Keys was considering as a link between the defendants and Hamas terrorism, which was the cause of David Boim’s death.
*761 Our review of decisions on summary judgments is, of course, de novo. Therefore, a minor error, if there is one, in Judge Keys’ phrasing is not fatal so long as our review of the undisputed evidence in the record supports the judgment. If it doesn’t, the problem is with the evidence. But in my view, Judge Keys got it right on both the facts and the law.
A brief look at some of the evidence on which Judge Keys relied bears out my conclusion that he was, in effect, considering whether there was a causal link between a defendant’s actions and Hamas terrorism and that, in fact, the evidence shows a causal link. As to Salah, the evidence includes that he took a trip to the Occupied Territories and Israel at the request of Mousa Mohammed Abu Marzook, the head of military operations for Hamas. The purpose of the trip was to revive those operations. He contributed money to Ha-mas operatives for the purpose of carrying out terrorist activities. He provided money to a Hamas operative to buy weapons to be used in terrorist operations. In a statement he gave while in Israeli custody, he describes meetings with Hamas operatives regarding military operations. Salah’s response to the Boims’ evidence is not to offer facts which dispute it, but primarily to move to strike the evidence on various grounds and to contend that his statement was procured by torture. Judge Keys carefully considered Salah’s arguments but concluded that the evidence was reliable. My review of the record convinces me that the standard the majority has articulated for a causal link has been met as to Salah.
AMS/IAP published and distributed pro-Hamas documents, including one which contained an editorial that advocated martyrdom operations, meeting death with death, and killing Jews. In addition, AMS/ IAP published documents designed to garner public support for Marzook. IAP held annual conferences and invited pro-Hamas speakers and paid for their travel expenses, even including at one conference a veiled Hamas terrorist. There is a significant amount of evidence which shows that they contributed money to HLF and that they encouraged others to donate, knowing the money went to Hamas and its military activities.
The latter evidence loses its force, of course, because, in a part of the majority’s opinion with which I agree, the grant of summary judgment against HLF has been overturned. I agree that the district court erred in granting collateral estoppel effect to the decision in Holy Land Foundation for Relief and Dev. v. Ashcroft, 333 F.3d 156 (D.C.Cir.2003). Though if HLF is ultimately found to be liable, the evidence against AMS/IAP is strengthened as well. But I believe that, even without the evidence involving HLF, the Boims have shown AMS/IAP’s “general support” for Hamas terrorist activities from which one can infer their actions were a cause of ensuing acts of Hamas terrorism.
AMS and IAP also appeal the finding that they were intertwined entities to a degree that made any distinction between them meaningless. My review of the facts on this point leads me to the same conclusion as the district court.
Accordingly, I respectfully dissent from the court’s decision as to all defendants except HLF. As to HLF, I join the majority opinion.
. While commenting on this dissent, my colleagues say that I believe that “the undisputed facts show conclusively that Hamas was responsible for the murder of David Boim....” But "conclusively” is not the issue. The plaintiffs' burden in this civil suit was to prove their case by a mere preponderance of the evidence, and that, I think, they have accomplished.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9558255. Public record. Not legal advice.