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December 03, 2020 International Litigation & Dispute Resolution

When Propaganda and Torture Prevail Over Spiritual Practice and Religion

In a dispute between the Chinese Anti-Cult Association and the Falun Gong spiritual and religious group, the Second Circuit held that the followers of the group were not entitled to relief.

By Emmanuel Bonilla

In a dispute that spans over almost two decades through two amended complaints, the Second Circuit Court of Appeals held that the followers of the Falun Gong spiritual and religious group were not entitled to relief based on the allegations in their motion to file a third amended complaint. Gang v. Zhizen, 799 Fed. Appx. 16, 19 (2d Cir. 2020). The plaintiffs-appellant, Chen Gang and Zou Wenbo (hereafter plaintiffs) filed their initial complaint in 2004, which was based on the Alien Tort Statute (ATS) and Torture Victim Protection ACT (TVPA). 

The proceedings were delayed, in part, due to developments in the law related to the ATS. The district court ultimately dismissed the complaint for lack of subject matter jurisdiction. Gang and Wenbo filed three motions for leave to amend their complaint with the district court, though all three were denied on the grounds of futility and prejudice toward the defendant, Zhao Zhizhen. Thus, the Second Circuit reviewed the district court’s futility determination de novo and its denial of leave to amend on the basis of undue prejudice for abuse of discretion.

Zhao Zhizhen is alleged to have operated several state-owned media entities and served as a member of the standing committee of the executive council of the China Anti-Cult Association (CACA). Plaintiffs also purported that Zhizhen founded the CACA. Falun Gong originated in China and is “an ancient Chinese spiritual discipline in the Buddhist tradition.” CACA is alleged to have the specific purpose of “develop[ing] and disseminat[ing] anti-Falun Gong propaganda, and torture and interrogation methods and techniques for use by the police and other security personnel.”

As noted above, the plaintiffs suspected that Zhizhen, who served as a member of the executive council of CACA and an executive of radio and television stations, used “his position as an influential figure in Chinese society” to help persecute and torture Falun Gong members during his tenure as a member of the executive council of CACA. Hence, the plaintiffs alleged that Zhizhen exuded a personal influence on the persecution and torture of Falun Gong members by participating in training conferences, lectures, and classes held by CACA.


In Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014), the Second Circuit considered whether a pro se plaintiff had sufficiently presented the mental state element of the claim in the allegations set forth. Id. The plaintiff, Charles Nielsen, sued the defendant, Dr. Elaine A. Rabin, under the Fourteenth Amendment for deliberate indifference to serious medical needs.

The district court in Nielson ruled that the amendment was futile since the facts set forth did not adequately produce the alleged mental element needed for a deliberate indifference claim. In contrast, the Second Circuit acknowledged that generally a pro se litigant should be given leave to freely amend a complaint and be afforded every reasonable opportunity to demonstrate a valid claim. Furthermore, the Second Circuit held that the complaint and opposition brief sufficiently presented the mental state element of the claim. Thus, the court held that amending the complaint would not be futile.

Undue Prejudice

In Knife Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015), the plaintiffs sought declaratory and injunctive relief from the defendants with applying New York law criminalizing the possession of “gravity knives.” Id. “Gravity knives,” as defined by New York, include “any knife which has a blade which is released from the handle or sheath thereof by the force of gravity or the application of centrifugal force which, when released, is locked in place by means of a button, spring, lever or other device.” New York Penal Law §265.00(5).

In Knight Rights, the U.S. District Court for the Southern District of New York dismissed the plaintiffs’ complaint for lack of subject matter jurisdiction whereupon the plaintiffs appealed in the Second Circuit, which reviewed the case only on the basis for abuse of discretion.

The Second Circuit held that the district court’s erroneous assessment of the relevant facts did not negatively impact the outcome of the case. Specifically, the district court had already granted judgement in favor of the defendants in the form of motions to dismiss. Furthermore, in Knights Rights, the court noted that the amendment to the complaint would not have produced any new or useful information through discovery and would only have prejudice both parties. Thus, the court found the district court did not abuse its discretion in denying the motion to amend the complaint a second time.

Back to Gang v. Zhizhan

In comparison to Nielsen, the Second Circuit agreed with the district court that the allegations failed to state a plausible claim for with relief could be granted under the TVPA. Since the plaintiffs could not state a plausible claim for relief, any attempts at amending the complaint would be futile. Thus, the court agreed with the district court in dismissing the motion to amend the complaint.

Similarly, as in Knife Rights, the Second Circuit stated the district court did not err in denying the motion to amend the complaint for substantial prejudice. Specifically, plaintiffs could not provide any more relevant information and to continue prolonging the case, which had already spanned 15 years, would further cause undue harm to defendant.

In conclusion, the Second Circuit held there was no information presented to find the defendant liable for aiding and abetting the alleged behavior because the third element in the relevant statutory analysis —which states “the defendant must knowingly and substantially assist the principal violation”— was not met. Thus, the court affirmed the district court judgement and ended this long battle.

Emmanuel Bonilla is a JD candidate at Stetson University College of Law in Gulfport, Florida.

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