Court Likely Ends Falun Gong’s ‘Torture’ Allegations Against Chinese Journalist

A federal appeals court in Manhattan on Monday likely ended a 15-year-old lawsuit claiming that a well-known Chinese science journalist who lives in China incited prison guards and police to torture Falun Gong adherents there.

The U.S. Court of Appeals for the Second Circuit upheld a trial court ruling in Hartford, Conn., that the Falun Gong, a spiritual practice banned in China, had been unable to properly claim that Zhao Zhizhen knowingly and substantially assisted in such torture.

The three-judge panel also found that because of the extensive delays in the case, Zhao would be prejudiced if the Falun Gong was permitted to go ahead with its request to add new allegations to the complaint.

As a result, the court denied the plaintiffs’ motion to file a third amended complaint.

The suit, brought by the Falun Gong’s litigation arm on behalf of several followers who left China and now live abroad, alleged that they had been tortured for their religious beliefs.

The civil lawsuit was filed under two seldom-used laws that allow citizens from one country to sue citizens of another in U.S. courts. The Second Circuit’s ruling was issued in a summary order, which usually is not appealable.

Bruce Rosen, Zhao’s attorney, said Zhao’s disparagement of the Falun Gong was little more than criticism of the movement and its leader and was protected by a right to free speech. “This was a libel suit disguised as a torture case,” added Rosen, a partner with McCusker, Anselmi, Rosen & Carvelli, P.C., in Florham Park, N.J.

Zhao argued that his reporting on the Falun Gong was similar to that aired about cults on “60 Minutes” and other U.S. programs. He also said he was not aware of the alleged abuse and has contended that the group’s founder, Li Hongzhi, who now lives in the United States, was a charlatan and that some of the group’s practices were dangerous.

Zhao was one of the founders of the China Anti-Cult Association. The plaintiffs alleged that Zhao published materials that stressed the need to use torture and violence to transform Falun Gong practitioners and that Zhao used his position as an influential person to call for the torture. Zhao denied these allegations.

Zhao was the director of Wuhan Television station in Wuhan, China, when he was served with the lawsuit in July 2004 while visiting with his daughter in New Haven, Conn., after her graduation from Yale.

The plaintiffs sued under the Alien Tort Statute (ATS), the 18th-century law that allows suits in the U.S. by foreigners who allege human rights violations around the world, and the Torture Victim Protection Act (TVPA). Proceedings were partly delayed because of legal developments with the ATS.

In 2018, U.S. District Judge Robert N. Chatigny denied the plaintiffs’ motion to amend the complaint for the third time.

Chatigny found, and the appeals court agreed, that the plaintiffs insufficiently stated a claim, specifically that they did not show that Zhao substantially assisted in torture.

For example, the appeals court said, “the plaintiffs failed to allege that Zhao directly participated in the torture, ordered any Chinese police or prison guards to carry out the torture, or assisted in the torture in any way, other than creating a propaganda polemic expressing anti-Falun Gong sentiments that some officials used in carrying out Chinese torture practices targeting Falun Gong members.

”The appeals court also agreed with Chatigny that the Falun Gong failed to allege the existence of an agreement between Zhao and the Chinese Communist Party to commit torture – therefore failing to sufficiently allege a civil conspiracy claim.

Finally, the appeals court upheld Chatigny’s finding that Zhao would be harmed if the plaintiffs were permitted to add new allegations. The “passage of time is undoubtedly prejudicial to Zhao,” the court said.

Rosen, Zhao’s attorney, said this was one of the last of a dozen unsuccessful cases brought by the Falun Gong against Chinese officials in the U.S. to try to embarrass them and find them civilly guilty of horrendous crimes.

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