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Judge Napolitano Throws Cold Water on Anyone Hoping That American Courts Will Hold China Accountable

While China has openly mocked Missouri’s attempt to hold it accountable for the COVID-19 pandemic, Missouri’s Attorney General Eric Schmitt predicted that the lawsuit would be successful “to the tune of billions of dollars.” Fox News senior judicial analyst Andrew Napolitano said flat out on Thursday that Missouri does not have a case.

In a segment on the Fox News Rundown podcast, Judge Napolitano said, right now, the law is decidedly not in the favor of states or anyone else seeking to hold China’s feet to the fire in the American courts. Legislative actions in Congress could change the chess board, but right now the Foreign Sovereign Immunity Act (FSIA) is king.

The Act, Napolitano noted, “basically says American courts do not have jurisdiction over the behavior of foreign governments and that, of course, would bar nearly any lawsuit against the government of China.”

Napolitano said that Congress could seek to amend the law, but the current law on the books is clear that a commerce-related carve-out would not apply.

As Law&Crime has repeatedly noted and emphasized, look no further at present than the FSIA if you are looking for a starting point on evaluating the prospects of Missouri’s lawsuit (or other such lawsuits) against China.

The legal doctrine of sovereign immunity, enshrined in federal law in 1976 with the FSIA, essentially guarantees that the Missouri lawsuit will not amount to anything. Under the FSIA, foreign nations are granted extremely broad protections from lawsuits brought in the United States. The few exceptions to the Act—most of which deal with commercial activity–are extremely narrow and often rejected by domestic courts. Example? The dismissal of the Democratic National Committee’s lawsuit against Russia.

But even if Missouri’s case wasn’t thrown out of court right away, Napolitano asked, “How would an American federal judge possibly determine what caused the virus and caused it to spread?”

Missouri requested relief on one count of public nuisance, one count of abnormally dangerous activities, and two counts of breach of duty, with remedies that include civil penalties and restitution, abatement of the public nuisance, cessation of abnormally dangerous activities, and punitive damages.

“During the critical weeks of the initial outbreak, Chinese authorities deceived the public, suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in the face of mounting evidence, destroyed critical medical research, permitted millions of people to be exposed to the virus, and even hoarded personal protective equipment—thus causing a global pandemic that was unnecessary and preventable,” the Missouri lawsuit stated. “This civil action seeks to hold Defendants accountable for the extraordinary public-health crisis that they created and to allow the State of Missouri to recoup billions of dollars lost as a result of Defendants’ actions and inactions.”

Napolitano suggested that the evidentiary hurdle would be insurmountable.

“The judge can’t go by media reports because that’s all hearsay,” he said. “The judge would actually have to have firsthand evidence in a courtroom, which at this point is nearly impossible to provide.”

Jerry Lambe contributed to this report.

[Image via Fox News screengrab]

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Matt Naham is managing editor of Law&Crime. He formerly worked as news editor and weekend editor at Rare.