The Alien Tort Statute and International Human Rights

The Alien Tort Statute (28 U.S.C. § 1350), also called the Alien Tort Claims Act (ATCA), was one of the first statutes enacted by the U.S. Congress as part of the Judiciary Act of 1789. It opened the doors of the U.S. courts to all foreign citizens (i.e. “aliens”) with regard to any civil wrongs (i.e. torts) committed in violation of customary international law. The language of the statute is both short and simple: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

Immediately after its passage, the Alien Tort Statute (“ATS”) fell into virtual obscurity. There were only two reported court cases in the almost 200 years between 1789 and 1980.

Since 1980, however, there have been a virtual avalanche of ATS cases brought in federal courts on behalf of foreign nationals, and the courts have generally interpreted this statute to allow foreign citizens to seek remedies in U.S. courts for human-rights violations for conduct committed outside the United States. Lawyers associated with The Center for Constitutional Rights started the ball rolling in Filartiga v. Pena-Irala, a case brought on behalf of two Paraguayan citizens resident in the U.S against a Paraguayan former police chief who was also living in the United States. The plaintiffs alleged that the defendant had tortured and murdered a member of their family, and they asserted that U.S. federal courts had jurisdiction over their suit under the ATS.

At first, the case hit a stone wall in the district court, which dismissed the complaint for lack of subject-matter jurisdiction, holding that the “law of nations” does not regulate a state’s treatment of its own citizens. However, the  U.S. Court of Appeals for the Second Circuit reversed the decision of the district court. Filartiga v. Pena-Irala, 630 F.2d 876, 885 (2d Cir. 1980). First, it held that the ATS was a constitutional exercise of Congress’s power, because “the law of nations…has always been part of the federal common law“, and thus the statute fell within the federal-question jurisdiction of the U.S. courts. Second, the court held that the contemporary law of nations had expanded to prohibit state-sanctioned torture, and that various United Nations declarations, such as the Universal Declaration on Human Rights, also prohibited official torture. The court therefore held that the right to be free from torture had become a principle of customary international law.

Following the Second Circuit’s decision in Filartiga, several cases brought in the U.S. courts against individuals and major corporations under the ATS proved to be successful. For example, in one 2007 case, Wang Xiaoning v. Yahoo!, the World Organization for Human Rights USA filed a lawsuit in the U.S. District Court for the Northern District of California against Yahoo! on behalf of Chinese dissidents Wang Xiaoning and Shi Tao (Guao Quingsheng), claiming jurisdiction under the ATS. No. C07-02151 (N.D. Cal. Nov. 13, 2007). According to the complaint, Wang and Shi Tao used Yahoo! accounts to share pro-democracy material, and a Chinese subsidiary of Yahoo! gave the Chinese government identifying information that allowed authorities to identify and arrest them. The Complaint alleges that the plaintiffs were subjected to “torture, cruel, inhuman, or other degrading treatment or punishment, arbitrary arrest and prolonged detention, and forced labor.” Yahoo! settled the case in November 2007 for an undisclosed amount of money, and it agreed to cover the plaintiff’s legal costs as a part of the settlement. In a statement released after the settlement was made public, Yahoo! said that it would “provide ‘financial, humanitarian and legal support to these families’ and create a separate ‘humanitarian relief fund’ for other dissidents and their families.” See Joint Stipulation of Dismissal, Xiaoning v. Yahoo!, Inc., No. C07-02151 (N.D. Cal. Nov. 13, 2007).

The first U.S. Supreme Court case directly addressing the ATS is the 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The plaintiff in Sosa (Alvarez) brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the U.S. for torturing and murdering a Drug Enforcement Administration officer. When the U.S. was unable to secure Alvarez’s extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the U.S. Alvarez claimed that his “arrest” by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the U.S. The U.S. Court of Appeals for the Ninth Circuit held that Alvarez’s abduction constituted arbitrary arrest in violation of international law. However, the Supreme Court reversed, holding that the ATS did not create a cause of action, but instead merely “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Sosa v. Alvarez-Machain, 542 U.S. at 720. According to the Sosa decision, such actions must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” Although the Court noted that scope of the ATS is not limited to violations of international law recognized in the 18th century, with respect to recognizing contemporary international norms, the court’s opinion stated that “the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping.” The Court further noted that under the ATS, any cause of action for violations of international norms must be as “specific, universal, and obligatory” as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century. Finally, the Supreme Court, in Sosa, found that the following categories to be actionable under the ATS: torture; cruel, inhuman, or degrading treatment; genocidewar crimescrimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance.

Specifically addressing Alvarez’s claims, the Supreme Court in Sosa concluded that “a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.  Although not explicitly stated, the Supreme Court’s narrow interpretation of the ATS may have been influenced by a growing uneasiness that the U.S. courts really had no business resolving disputes solely involving foreigners, and that the U.S. taxpayers should not be required to foot the bill for costly court litigation relating to conduct that occurred outside the U.S.

The U.S. courts have almost always recognized that the ATS is an effective vehicle for foreign nationals who have been subjected to torture or other international law violations to pursue their claims, as long as the human rights abuses rise to the level where they may be considered to be in violation of international law. For example, in Kpadeh v. Emmanuel, Charles McArthur Emmanuel (also known as “Chuckie Taylor” or “Taylor Jr.”), the son of Charles Taylor, former President of Liberia, was the commander of the infamously violent Anti-Terrorist Unit (ATU), commonly known in Liberia as the “Demon Forces”. In 2006, U.S. officials arrested Taylor Jr. upon entering the U.S. (via the Miami International Airport) and the Department of Justice later charged him based on torture he committed in Liberia. He was convicted of multiple counts of torture and conspiracy to torture, and was sentenced to 97 years in prison.

The World Organization for Human Rights USA and the Florida International University College of Law then filed a civil suit in the Southern District of Florida on behalf of five of Taylor Jr.’s victims pursuant to the Alien Tort Statute and the Torture Victim Protection Act. See Rufus Kpadeh et al. v. Charles McArthur Emmanuel, No. 09-20050-civ (S.D. Fla. Feb. 5, 2010). The plaintiffs won by default judgment as to liability on all counts, and in February 2010, following trial on damages at which Taylor appeared, the court found Taylor liable to the plaintiffs for damages of over $22 million.  261 F.R.D. 687 (S.D. Fla. 2009).

While the U.S. courts have always recognized the jurisdiction under the ATS against individuals who commit human rights abuses, the liability of corporations under the ATS has been an entirely different matter. Until October 2011, there was a split in the federal circuit courts regarding whether corporations, as opposed to natural people, could be held liable under the ATS. In 2010 the Second Circuit Court of Appeals held in Kiobel v. Royal Dutch Petroleum Co. that “customary international law has steadfastly rejected the notion of corporate liability for international crimes” and thus that “insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS”. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 120 (2d Cir. 2010).

The plaintiffs in Kiobel were citizens of Nigeria who claimed that Dutch, British, and Nigerian oil-exploration corporations aided and abetted the Nigerian government during the 1990s in committing violations of customary international law. The plaintiffs claimed that Royal Dutch Shell compelled its Nigerian subsidiary, in cooperation with the Nigerian government, to brutally crush peaceful resistance to aggressive oil development in the Ogoni Niger River Delta. Plaintiffs sought damages under the ATS. The defendants moved to dismiss on two grounds. First, they argued that customary international law itself – not the ATS — provides the rules by which to decide whether conduct violates the law of nations where non-state actors are alleged to have committed the wrong in question. Second, they contended that no norm has ever existed between nations that imposes liability upon corporate actors, as opposed to individuals. Thus, the Second Circuit dismissed the case against Royal Dutch Shell, not because there was not ample evidence indicating that it had been deeply involved in the Nigerian governments efforts to suppress any popular opposition to Shell’s oil exploitation, but because it reached the startling conclusion that there apparently are no international codes of conduct or ethics for corporations.  It has often been said that it is difficult to hold multi-national corporations liable under international law because they neither have a body to be jailed nor a soul to be damned. Yet even I was surprised that a U.S. court would basically grant corporations immunity from liability under the ATS, which is basically what the Second Circuit did in Kiobel.

However, in 2011, the Seventh Circuit Court of Appeals, the Ninth Circuit Court of Appeals, and the D.C. Circuit Court of Appeals declined to follow the Second Circuit’s reasoning in Kiobel, all of them ruling that corporate liability was possible under the statute. On April 17, 2013, in Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court issued a decision affirming the Second Circuit Court of Appeals but on different grounds, holding that the ATS did not create jurisdiction for a claim regarding conduct occurring outside the territory of the United States, leaving the question of corporate liability unresolved. 569 U.S. ___(2013).

With its Kiobel decision, the Justice Robert’s Supreme Court thus left its unenviable mark as the most pro-corporate Supreme Court in history, severely restricting the ability of human rights victims to seek redress in U.S. courts against corporations from their commission and complicity in human rights abuses abroad. The plain language of the Alien Tort Statute itself and extensive jurisprudence starting with the trials of Nazi war criminals at Nuremburg had established that fundamental human rights violators may be prosecuted in the courts of all civilized countries, including the United States. With its decision in Kiobel, rogue corporations and executives were given some hope that they could seek “safe haven” for their participation in such human rights abuses, just as Nazi war criminals sought safe haven in Paraguay or Brazil at the end of World War II. The United States was never meant to harbor the enemies of mankind; on the contrary, it was – and hopefully will continue to be – a beacon of home for the downtrodden and oppressed who have been victims of violations of their fundamental human rights.

The Supreme Court again addressed the question of whether there is corporate liability under the ATS in Sarei v. Rio Tinto, a case brought by residents of the island of Bougainville in Papua New Guinea brought suit against multinational mining company Rio Tinto. The lawsuit, which was based on a 1988 revolt against Rio Tinto, alleged that the Papua New Guinea government, using Rio Tinto helicopters and vehicles, killed about 15,000 people in an effort to put down the revolt. On October 25, 2011, the Ninth Circuit Court of Appeals, sitting en banc, issued a divided opinion holding that certain claims against a foreign corporation implicating the conduct of a foreign government on foreign soil could proceed under the ATS. The company filed a petition for a writ of certiorari in the Supreme Court for review of the decision.  On April 22, 2013, the Supreme Court sent the case back to the Ninth Circuit for further consideration in the light of its decision in the Kiobel case, and on July 9, 2013, the U.S. Court of Appeals for the Ninth Circuit dismissed the case, based upon the Kiobel decision.

The U.S. courts have also generally required a fairly high standard of proof for ATS violations. For example, several courts have found that it is not enough for a defendant to just have knowledge of the human rights abuses to be liable under the ATS; a defendant must actively participate or aid and abet such abuses to be held liable, For example, on October 2, 2009, the Court of Appeals for the Second Circuit, in Presbyterian Church of Sudan v. Talisman Energy, Inc., held that “the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone.” 582 F.3d 244 (2nd Cir.2009). In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that “plaintiffs have not established Talisman’s purposeful complicity in human rights abuses.” In reaching that conclusion, the Second Circuit stated that “the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses.”

For an ATS case to be successful, therefore, an ATS complaint must set forth specific allegations of a defendant’s participation in the alleged human rights abuses; vague general allegations are insufficient. For example, on August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in “the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists.” Sinaltrainal union members in Colombia launched the website “” which called for the boycott of Coke.

However, the district court dismissed the Sinaltrainal complaint and the Eleventh Circuit upheld that ruling.  In doing so, the Eleventh Circuit relied upon the Supreme Court’s recent Ashcroft v. Iqbal decision, 556 U.S. 662 (2009), in addressing the adequacy of the complaint, which has must have “facial plausibility” to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” The Eleventh Circuit then applied the Iqbal standard to plaintiffs’ allegations against Coca-Cola and held that they were insufficient to survive dismissal.

Another major ATS case is Doe v. Unocal, which was filed in September 1996 by four Burmese villagers against Unocal and its parent company, the Union Oil Company of California. In October 1996, another fourteen villagers also brought suit. The suits alleged various human rights violations, including forced labor, wrongful death, false imprisonment, assault, intentional infliction of emotional distress and negligence, all relating to the construction of the Yadana gas pipeline project in Myanmar, formerly Burma. In 2000, the district court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing. Plaintiffs appealed and ultimately, shortly prior to when the case was to be argued before the Ninth Circuit en banc court.  Doe vUnocal, 395 F.3d 932 (9th Cir. 2002), opinion vacated and rehearing en banc granted, 395 F.3d 978 (9th Cir. 2003). In December 2004, the parties announced that they had reached a tentative settlement. Once the settlement was finalized in March 2005, the appeal was withdrawn and the district court opinion from 2000 was also vacated. According to a joint statement released by the parties, while the specific terms were confidential, “the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region.”

Thus, the Alien Tort Statute, while severely bruised, remains alive and well as to human rights abuses occurring internationally as long as there is some direct connection to the U.S., and where there is strong evidence that the conduct complained of violates customary international law norms. Corporations operating in the U.S. still must think twice before they ignore human rights standards in their insatiable quest to improve their bottom line.

The Supreme Court Further Undercuts the Fourth Amendment

On Monday, June 20, 2016, the U.S. Supreme Court further vitiated the Fourth Amendment’s prohibition against unlawful searches and seizures. In Utah v. Strieff (No. 14-1373), Justice Clarence Thomas wrote the majority opinion, joined by Chief Justice Roberts, and Justices Kennedy, Breyer and Alito. Justices Sotomayor, Ginsburg and Kagan dissented.

In this case, narcotics detective Douglas Fackrell was conducting a surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week led him to suspect that the occupants were dealing drugs. When he observed defendant Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

The Supreme Court reversed, holding that the evidence Officer Fackrell seized incident to Strieff’s arrest was not subject to the “exclusionary rule,” which requires that evidence unlawfully seized be excluded from evidence. In his majority opinion, Justice Thomas found that the evidence found on Strieff’s person was admissible based on an application of the “attenuation factors” originally articulated by the Court in Brown v. Illinois, 422 U. S. 590. This attenuation doctrine provides for admissibility when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance. See Hudson v. Michigan, 547 U. S. 586, 593. The basic argument applied by Justice Thomas in his majority opinion was that although the initial investigatory stop of Strieff was admittedly unlawful, since it was assumed that the officer did not have sufficient “reasonable suspicion” that Strieff was engaged in an illegal activity, the causal connection between the unlawful search and the seizure of evidence from his person was “attenuated” by the fact that Officer Fackrell’s discovered there was a valid, pre-existing arrest warrant for him.

As Justice Sotomayor pointed out in a blistering dissent, the majority decision basically means that any tainted evidence unlawfully seized after an illegal investigatory stop of a person may be used as evidence to convict that person of a crime as long as the officer later learns that there is an outstanding traffic ticket or moving violation outstanding against that person. Thus, this decision almost completely undercuts the exclusionary rule, which is the primary judicial remedy for deterring Fourth Amendment violations, and encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure” and, relevant here, “evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U. S. 796, 804.

Sotomayor’s remarkably strong dissent criticized the majority opinion as excusing clear-cut violation of the Fourth Amendment right to be free of unlawful searches and seizures, while saying “that your body is subject to invasion” even though your rights have been violated. Her dissent cited to the Department of Justice’s recent report on police misconduct in Ferguson, Missouri, as well as to various books that and books like Michelle Alexander’s “The New Jim Crow,” Ta-Nehisi Coates’ “Between the World and Me” and James Baldwin’s 1963 classic “The Fire Next Time.”

Sotomayor noted that, although Strieff is white, the majority opinion could be used by police officer to justify racial profiling: “The white defendant in this case shows that anyone’s dignity can be violated in this manner … But it is no secret that people of color are disproportionate victims of this type of scrutiny … For generations, black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

This decision is the latest in a long line of decisions that have been chipping away at the Fourth Amendment and the Exclusionary Rule’s deterrence against police misconduct and arbitrary stops without any reasonable suspicion. This is but another reason why the selection of the ninth Supreme Court justice to fill the vacant seat on the Supreme Court is so critical to important issues raised by this case and so many others.


Namibia: Germany’s Forgotten Genocide

Although it took Germany many decades, the German government finally accepted responsibility for the Holocaust, the German’s systematic attempt to annihilate the Jewish population of Europe. More recently, the German Parliament has passed a resolution condemning the forced relocation of the Armenian population by the Ottoman Empire in 1915 as a genocide. Turkey promptly withdrew its ambassador from Berlin, which Germany took as a confirmation of its moral rectitude and sensitivity to human rights

However, before Germany gets carried away with its self-congratulatory righteousness, it must first come to terms with its first genocidal campaign, which took place in Africa many decades before the Jewish Holocaust. During the period from 1904 through 1908, Imperial German forces annihilated over 100,000 members of the Ovaherero and Namaqua tribes in what was then called Southwest Africa (now Namibia). This is now generally recognized as the first genocide of the Twentieth Century, and yet no mention of this dark period in German history can be found in German school textbooks, and few German students are even taught that Germany was one of the great colonial powers occupying substantial portions of sub-Sahara Africa.

Imperial Germany first established its colony in Southwest Africa in 1883, and then signed a treaty with the Chief of the Herero tribe, Kamaharero, on October 21, 1885. Interestingly, the treaty was signed on behalf of Imperial Germany by Heinrich Ernst Goring, the Colonial Governor and father of Nazi Luftwaffe commander Hermann Goring. No sooner than the ink was dry on the treaty documents than the Germany began repeated violations of its terms, including the rape of Herero women and girls by Germans, a crime that the German authorities largely ignored. Under German colonial rule, natives also were routinely used as slave laborers, and their lands and cattle were frequently confiscated and given to German colonists. By 1903, over a quarter of Herero lands (originally approximately 50,000 square miles) had been seized by German colonists. In addition, the confiscation of Herero and Nama lands was expedited following the completion of the Otavi Railway Line running from the South West African coast to the inland German settlements.

In early 1904, having learned of a German plan to further divide up their territory and to establish “reservations” or “concentration camps,” the Herero finally revolted, and armed primarily with spears, killed between 123 and 150 Germans. Led by Chief Samuel Maharero, the Herero surrounded the town of Okahandja and cut links toWindhoek, the colonial capital. Colonial Governor Leutwein, who reported to the Colonial Department of the Prussian Foreign Office, called for urgent assistance, and on June 11, 1904, Lieutenant General Lothar von Trotha, who had been appointed as Supreme Commander of South-West Africa, arrived with an expeditionary force of 14,000 troops. Trotha, who had earned a reputation as an effective and ruthless officer after effectively crushing a similar revolt against German colonial rule in East Africa, made clear his intentions to crush the resistance and to annihilate the Herero and Nama peoples. Prior to the Battle of Waterberg on August 11-12, 1904, where his troops defeated 3000-5000 Herero combatants, General Trotha issued the following proclamation:
I believe that the [Herero] nation as such should be annihilated, or, if this was not possible by tactical measures, have to be expelled from the country…This will be possible if the water-holes from Grootfontein to Gobabis are occupied. The constant movement of our troops will enable us to find the small groups of nation who have moved backwards and destroy them gradually.
After the battle, the pursuing German forces pushed the surviving Herero further into the desert. As the exhausted and dehydrated Herero fell to the ground, German soldiers acting on orders killed men, women, and children mercilessly, even though almost all of them were unarmed and unable to offer any resistance. They were just trying to get away with their cattle. Those who managed to make it into the desert were prevented by German troops from returning.

On October 2, 1904, Trotha issued the following warning:
The Herero nation must now leave the country. If it refuses, I shall compel it to do so with the ‘long tube’ [cannon]. Any Herero found inside the German frontier, with or without a gun or cattle, will be executed. I shall spare neither women nor children. I shall give the order to drive them away and fire on them. Such are my words to the Herero people.
Trotha gave orders that captured Herero males were to be executed, while women and children were to be driven into the desert so that they would die of starvation and thirst. Trotha argued that there was no need to make exceptions for Herero women and children, since these would “infect German troops with their diseases.” Trotha further explained that his campaign to annihilate the Herero people “is and remains the beginning of a racial struggle”. Thereafter, German soldiers regularly raped young Herero women before killing them or letting them die in the desert.
The German general staff was aware of the atrocities that were taking place; its official publication, named Der Kampf,noted that:
This bold enterprise shows up in the most brilliant light the ruthless energy of the German command in pursuing their beaten enemy. No pains, no sacrifices were spared in eliminating the last remnants of enemy resistance. Like a wounded beast the enemy was tracked down from one water-hole to the next, until finally he became the victim of his own environment. The arid Omaheke [desert] was to complete what the German army had begun: the extermination of the Herero nation.

Governor Leutwein objected to Trotha’s “final solution” of the Herero and Nama “problem,” but not on humanitarian grounds. Rather he objected to the extermination of these indigenous peoples on economic grounds, writing that:
I do not concur with those fanatics who want to see the Herero destroyed altogether…I would consider such a move a grave mistake from an economic point of view. We need the Herero as cattle breeders…and especially as labourers.

By the end of 1904, the surviving Herero and Nama peoples remaining in South-West Africa, the majority of whom were women and children, were herded into concentration camps, where they were made available to colonists and private companies as slave laborers, or exploited as human guinea pigs in medical experiments. The most notorious of these camps was at Shark Island on the Atlantic coast, where the German authorities learned many of the lessons that were later employed at Auschwitz and other concentration camps during World War II. All prisoners were first divided into two categories: those who were fit to work and those who were not. For administrative purposes, pre-printed death certificates uniformly gave the cause of death as “death by exhaustion following privation.” Estimates of the mortality rate from disease, exhaustion and malnutrition at Shark Island and other concentration camps were between 45% and 74%. Despite these harsh conditions, any Herero who could still stand were taken outside the camp every day as forced laborers by the German guards, while the sick and dying were left without medical assistance. Shootings, hangings and beatings of the forced laborers were widely reported by eyewitnesses and in the press. One British eyewitness reported that “cartloads of their bodies were every day carted over to the back beach, buried in a few inches of sand at low tide, and as the tide came in the bodies were out, food for the sharks.”

Medical experiments on live prisoners were made by German doctors such as Dr. Bofinger, who injected Herero that were suffering from scurvy with various substances including arsenic and opium. After these “patients” inevitably died, he autopsied the bodies and reported the results. German doctors also experimented with dead body parts from prisoners, including those by Zoologist Leopard Schultzel, who noted that the taking of “body parts from fresh native corpses” was a “welcome addition.” An estimated 300 skulls were sent to Germany for experimentation, in part from concentration camp prisoners. The primary goal of the experimentation was to “prove” the superiority of the “white race” and the “Germanic people.” In October 2011, after three years of talks, the first skulls were returned to Namibia for burial, but the last human remains were not delivered back to Namibia until 2014.

Some researchers have drawn some direct links between the medical experiments by Dr. Eugen Fischer and later medical procedures used during the Nazi Holocaust. For example, Fischer later became chancellor of the University of Berlin, where he taught medicine to Nazi physicians. Otmar Freiherr von Verschuer was a student of Fischer, and Verschuer himself had a prominent pupil, the infamous Dr. Josef Mengele, who experimented on victims at the Auschwitz camp. In addition, Franz Ritter von Epp, who later participated in the liquidation of virtually all Bavarian Jews, took part in the Herero and Nama genocide as well.

Although the Shark Island Concentration Camp and other death camps were finally closed, the surviving Herero were distributed as forced or slave laborers to German settlers. All Herero over the age of seven were forced to wear a metal disc with their labor registration number. The Herero were also prohibited from owning land or cattle, both of which were considered necessary for survival.

In 1985, the United Nations’ Whitaker Report classified the massacres as an attempt to exterminate the Herero and Nama peoples of South-West Africa, and therefore one of the earliest cases of genocide in the 20th century.

In 1998, German President Roman Herzog visited Namibia and met Herero leaders. Chief Munjuku Nguvauva demanded a public apology and compensation, but Herzog stopped short of an apology, only expressing “regret.”

On August 16, 2004, at the 100th anniversary of the start of the genocide, a member of the German government, Heidemarie Wieczorek-Zeul, Germany’s Minister for Economic Development and Cooperation, apologized and expressed grief about the genocide, but the German government quickly made it clear that her speech could not be interpreted as an “official apology” by Germany or a basis for the payment of any compensation, reparations or restitution.
The parallels between the Herero and Nama Genocides and the Holocaust are inescapable. Even the rhetoric used by Trotha eerily presages the language used by Hitler to justify the mass extermination of the Jewish people as an “ethnic cleansing.” Trotha saw the annihilation of the Herero and Nama peoples as serving a higher purpose, as part of the establishment of a new world order. He said: “I destroy the African tribes with streams of blood… Only following this cleansing can something new emerge, which will remain.”

Until Germany formally acknowledges the Herero-Nama Genocide and provides appropriate compensation, this dark stain on German history and its collective psyche cannot be fully atoned for. The return of some skulls is just not a full and adequate response. The German government has had some discussions with representatives of the Namibian government, but even if some settlement is reached between those two countries, this will not provide any satisfaction to the Herero or Nama peoples themselves since they are recognized indigenous groups with identities separate and distinct from the government of Namibia itself. Paramount Chief Vekuii Rukora is the current recognized leader of the Ovaherero in Namibia, but the Ovaherero peoples also have communities in Botswana, South Africa and elsewhere in Africa, as well as an expatriate community in the United States and other countries. Even in Namibia, the Herero and Nama communities are in the distinct minority, and the political parties they support have never played a major role in the Namibian government itself, which has been dominated by one political party since the country gained its independence in 1990. As a result, Chief Rukora and others have asked the law firm of McCallion & Associates LLP to represent them in their search for recognition and justice from Germany.


The presumptive Republican candidate for President, Donald Trump, has proposed a ban on all Muslims entering the U.S., with the possible exception of Muslims who are already U.S. citizens, or members of the U.S. military seeking legal immigration status here.
The general reaction in the media and among most constitutional experts was to declare immediately and categorically that such a ban would be unconstitutional. They argue that it was prohibited by the First Amendment protection of Freedom of Religion, or the Fourteenth Amendment’s “Due Process Clause,” which bars the states from depriving “any person” of their property without “due process of law.” However, the answer to the question as to whether such a ban is constitutional or not is more complex.
To address this question from a purely constitutional perspective, we must put aside for the moment consideration of whether it makes practical, moral or ethical sense to impose a blanket ban on 1.6 billion people from entering the U.S. based solely upon their religious beliefs. Nor is the constitutional question the same question as whether such an action is consistent with fundamental American values and heritage, as summed up by the Statue of Liberty’s promise to generations of poor and oppressed people around the world (“Give me your tired, your poor, your huddled masses yearning to be free….”). The constitutional issues do not necessarily take into account the fact that our country was largely built by immigrants seeking refuge from religious oppression. Groups such as the Puritans, the Quakers, the French Huguenots came to America because they were fleeing religious oppression elsewhere, just as Muslim Shia refugees from Iraq and Syria have been seeking asylum in the U.S. as a result of persecution by Muslim Sunni terrorist groups such as ISIS.
As we have sadly learned throughout U.S. history, there is often a divergence between what is legal or constitutional and what is right and moral. Some of the darkest stains on the American soul have resulted from decisions that were found to be legal and constitutional, but nevertheless constituted outrageous deprivations of fundamental human rights. For example, slavery was legal in the United States up until the Civil War, despite the fact that by 1860, virtually no one argued that it was morally justifiable. Several decades later, during the 1890’s, in response to public hysteria over the “Yellow Peril” of Chinese immigration on the West Coast, Congress enacted legislation, known as the Chinese Exclusion Act, which effectively banned Chinese immigration. In a series of decisions, the U.S. Supreme Court upheld this ban on Chinese immigration, finding that such blatantly discriminatory legislation was constitutional. The Court relied upon the so-called “plenary power doctrine,” a legal concept articulated by the Supreme Court, acknowledging that Congress and the Executive Branch have tremendous power and discretion over immigration laws, and giving great deference to Congressional legislation dealing with immigration.
Similarly, the decision by President Roosevelt to acquiesce to West Coast hysteria regarding the perceived “threat” of an imminent invasion of the West Coast by the Japanese and to order that 100,000 innocent Japanese-Americans be herded into detention camps following Pearl Harbor was regrettably upheld by the Supreme Court as legal, although it was recognized by many Americans at the time, and by the post-World War II generations, as being morally repugnant and totally inconsistent with fundamental American values.
This ban on Chinese laborers and the incarceration of Japanese-Americans, however, was based solely upon ethnicity and national origin, not religion, and there does not appear to be any Supreme Court case that squarely addresses the constitutionality of such a ban based purely on religious grounds.
There is no question that the U.S., as a sovereign nation, has virtually an unfettered right to decide who enters the country and who is eligible for citizenship status. Congress has the power to decide who may become a citizen and has broad powers over foreign commerce. The President and the Executive Branch also have broad powers to manage foreign relations and to control and secure the nation’s borders.
The most recent case that is directly relevant to the issue of whether a broad ban on Muslim immigration may legally be imposed is the Supreme Court’s 1972 decision in the case of Kleindienst v. Mandel, which upheld the Executive Branch’s refusal to allow a Belgian scholar who subscribed to a Marxist political philosophy from entering the U.S. to give a series of lectures. In a 6 to 3 split decision, the Supreme Court reluctantly declined to second-guess the Executive Branch’s decision to ban Mandel based upon his political philosophy. This decision, however, should not be interpreted as giving a clear green light to a ban on all Muslims from entering the U.S. because that decision also rejected the argument made by the Executive Branch that U.S. courts do not even have the power to review such decisions. Also, the Court found that the Executive Branch’s reasons for excluding Mandel were “facially legitimate and bona fide,” leaving open the door to a possible future finding by the Supreme Court that there is no rational basis for a blanket immigration ban on all Muslims, and that the only true motivation for such a proposal is to pander to current public hysteria and xenophobia triggered by terrorist acts by Muslim residents and citizens of the U.S. in San Bernadino and Orlando.
The power of Congress and the President to ban entire groups based upon national origin or religion is not unlimited under the Constitution. Some portions of the Constitution only protect “citizens,” but other important sections were designed to protect all “persons” or “people,” not just citizens. The First Amendment, for example, speaks of “people,” not “citizens,” and thus protects the right of all people to exercise Freedom of Religion and Speech. A ban on Muslims would also arguably violate the plain language – or at least the spirit — of the Equal Protection Clause of the Fourteenth Amendment, which prohibits state governments from denying any “person” the equal protection under the law.
It should also be kept in mind that there have been many proposals in the past to ban “foreigners” of one ilk or another, and with the few notable exceptions previously mentioned, such isolationist and xenophobic views have never been implemented. Throughout U.S. history, there have been “Nativist” movements, whereby American groups and even political parties have sought to lift the drawbridge into the U.S. by seeking to bar all further immigration into the country. But if there is any clear lesson in American history, it is that successive waves of immigration have infused this country with the dynamic energy that has built the U.S. into the economic powerhouse that it is today, and in all probability, present and future immigration will continue to provide this same kind of energy. Just take a walk around virtually every American city or town, take a ride in a taxicab (or Uber), dine at a local restaurant, take notice of who is mowing the lawns, and you can see the faces of immigrants doing the necessary work that natural born Americans chose not to do.
One important legal question is that if a President Trump made good on his promise to ban Muslims from the U.S., who would have legal “standing” to challenge such a policy. Certainly, a Muslim outside the U.S. would not have the right to mount such a challenge since no foreign national has a constitutional “right” to enter the U.S.. In all likelihood, a legal suit would be commenced by one of the thousands of Muslim refugees from Iraq and Syria who are already in the U.S. and who have sought asylum. Since they are already in the U.S., and there is a strong body of law already in place recognizing the due process rights of detainees in deportation cases, they would be in a strong position to argue that there is no legal or even rational basis for deporting them solely based upon the arbitrary and discriminatory views held by Mr. Trump and others regarding their religious beliefs. Moreover, given their physical location on U.S. soil, these Muslims could also argue that they have a huge personal stake and “property interest” in remaining here in the U.S.
Given the fact that legal scholars and Supreme Court justices must be painfully aware of the Court’s tragic record of jurisprudence upholding blatant discriminatory legislation targeting specific groups, such as the Chinese or Japanese-Americans, it would be expected that this Supreme Court would take a more enlightened – and critical – view of any legislation or executive action to ban all Muslims from entering the U.S. As P.T. Barnum was fond of saying, “No one ever lost money underestimating the intelligence of the American public.” Hopefully, the same will not be said about the current or future Supreme Court. But only time will tell. In the meanwhile, it is important to recognize that the question of whether Muslims may be barred from entering the U.S. solely based upon their religion is not just a legal and constitutional question, but also a fundamental moral and ethical one that may define what it means to be an American for generations to come.


It is a great tragedy for a parent to outlive a child. Even more painful is when the child commits suicide. Suicides among teenagers are particularly troubling because so many of them are preventable. According to the National Institute of Mental Health, between 500,000 and one million teens and young adults attempt suicide every year; most do so as part of a temporary impulse. The same research shows that if the impulse to commit suicide is thwarted by intervention or an inability to find a way to attempt suicide, the impulse passes, the teen lives and rarely tries it again.

Suicides on college campuses are an ongoing concern to administrations everywhere, and given the propensity of teens and young adults (18-24) to be more susceptible to a suicidal impulse, many colleges and universities have established mental health programs designed to decrease the number of attempted suicides and suicides on their campuses. Usually, these programs have several components: counseling services, peer-to-peer support, faculty training, and general increased awareness. But first and foremost, a college that is genuinely concerned about really implementing an effective suicide prevention program conducts an audit to determine which instrumentalities or means to commit suicide are present on campus and present the most serious danger of attracting students with suicidal impulses.

It only makes sense that if studies have shown that the college-age students on campus have a higher risk of attempted suicides than the general population, and these students often have fleeting or brief bouts of depression that may give rise to suicidal thoughts, then there should be a focus on removing or reducing students’ potential access to the most dangerous means to commit suicide, such as access high buildings or bridges where suicides or attempted suicides have taken place.

In the case of Ginsburg v. City of Ithaca and Cornell University, Civ. No. 5:11-cv-1374, which was brought in the United States District Court for the Northern District of New York, the central issue before the court was whether Cornell University and the City of Ithaca could be held legally liable for their negligent failure to take reasonable steps to install suicide prevention barriers on one of the bridges crossing a high gorge and connecting two parts of the university campus, despite the fact that, over a period of several decades, numerous college students and other young people from the surrounding community had easily jumped to their deaths. The prevalence of suicide by jumping from the gorge bridges at Cornell left many grieving families over the decades wondering why effective suicide prevention barriers, such as high railings or netting under the bridges, had never been installed. Many families of potential and current Cornell students also began to wonder whether it was safe to send their sons and daughters to a university that was gaining the dubious reputation of being “Suicide U.”

In July 2013, I received a phone call from Howard Ginsburg, a real estate attorney in Boca Raton, Florida. He told me that one of his two children, Bradley Ginsburg, an 18-year old freshman at Cornell University in Ithaca, New York, had jumped to his death from one of the bridges crossing the deep gorges cutting through the Cornell campus. The specific bridge from which he had jumped – the Thurston Avenue Bridge — connected Cornell’s North Campus, where Bradley and other Cornell freshman lived, to the main academic campus. Bradley had crossed the Bridge on a daily basis before jumping to his death on February 17, 2010.

Bradley’s suicide came as a complete shock to his parents and all who knew him. He came from a stable and happy family, with two devoted parents and a younger sister with whom he had a good relationship. He was an honors student in high school in Boca Raton, Florida, and was an A student in his first year at Cornell. He participated in extracurricular activities, was well liked by his classmates, worked diligently in one of the dining halls at Cornell, and was a pledge at one of the most popular fraternities on campus. Bradley had never suffered from depression or other psychological disorders.

By all indications, Bradley’s suicide was an impulsive act that was tragically successful due to the ease with which he could climb over the low railing on the Thurston Avenue Bridge and leap to his death in the gorge far below.

After his death, a police analysis of Bradley’s computer revealed that, in the few days before his death, he had researched topics involving depression and suicide, and listened to some somber and depressing songs just before he left the dorm. Bradley’s roommates were unaware that he was dwelling on these dark subjects before his death. Outwardly he appeared to be as happy and well-adjusted as ever.

Before his death, Bradley left a suicide note on his computer, apologizing to all for what he was about to do. He then left his dorm room, walked the short distance to the Thurston Avenue Bridge, and easily jumped to his death.

Bradley was not the first; in fact, there had been jumpers from the Cornell bridges for decades. Bradley’s father was himself an alumnus of Cornell, and the fact that the gorge bridges were used for suicides was well known to the student body even then. After Bradley’s death, Howard Ginsburg, like many grieving parents before him, sought an explanation from the Cornell administration as to why, despite several decades of suicides by jumping from the bridges, Cornell had not insisted that safer railings or other suicide-prevention barriers be installed on all the gorge bridges.

Not surprisingly, he never got any good explanation from Cornell. What he got was an old fashion “run around.” The first excuse Cornell offered was that since the Thurston Avenue Bridge was owned by the City of Ithaca, not by Cornell, so the university was not responsible to fix anything on the Bridge since it had no authority to do so. While Mr. Ginsburg was not a legal scholar or an authority on the shared responsibility of municipal facilities in a private setting, he knew intuitively that Cornell’s answer did not make sense. Here was a world-class Ivy League college, which was of major importance to the City of Ithaca’s economy, and the college administration could not do anything except watch in horror as year after year student after student jumped from the Bridge? While the Bridge was owned by Ithaca, it was an integral part of the college campus infrastructure. It was logical to assume that there had to be some connection or collaboration between the City and the college and that Cornell could at least exert some influence – if not joint control – over what measures should be taken to reduce this ongoing threat to student safety. City residents couldn’t even get to the Bridge without passing over Cornell property, and Cornell students could not cross from one part of the campus to another without traversing it.

Even more obvious was the ongoing importance of the University to the City. It was (and still is) a major employer. Every year thousands of students arrive in Ithaca and, along with fellow students at Ithaca College, support the local business and provide prestige to the City. Contrary to Cornell’s position that the Bridge totally belonged to the City, and that the University didn’t have any say over how the Bridge’s design and safety components, key documents obtained during the course of the litigation established that the reality was quite different. Hundreds of pages of documents revealed that Cornell had been intimately involved in the re-design and re-construction of the Thurston Avenue Bridge and that the railings and other safety components that were installed were totally ineffective in preventing the needless loss of student lives.

Before I became involved in the case, an experienced upstate New York lawyer, Leland T. Williams, learned that the Bridge had been redesigned and rebuilt only a few years earlier, during 2006 and 2007, and that Cornell had played a major role in that project. Cornell had given some lip-service to the idea that the railings on the Bridge should be designed to prevent suicides, but decided that the concern for “aesthetics” was more important than suicide prevention. This irresponsibility might have been understandable if no one had ever committed suicide from the gorge bridges at Cornell. It might have even made sense if there was no information about 18-24 years old being more susceptible to suicide, or if 27 people had not jumped from the gorge bridges between 1990 and 2010. Finally, scientific and well-respected psychological research concerning suicides among college students was plentiful and consistent. Regardless of all this evidence, tragically and inexplicably, the new railings were just as easy to vault as the old ones.

In response to continuing questions from Bradley’s parents, Cornell took the position that Bradley’s suicide, however tragic, was not reasonably foreseeable, so Cornell had no liability or responsibility for his death. Cornell reasoned that since Bradley had exhibited no signs or symptoms of depression or other psychological distress, Cornell had no responsibility to provide psychological counseling to him or any other form of support. What Cornell failed to acknowledge was that as a psychologist affiliated with Cornell explained: “The people who are at the greatest risk are the ones who are best at hiding what’s wrong with themselves.”

In seeking to avoid any responsibility for Bradley’s death, as well as that of other students who had ended their lives in the same way, Cornell also relied on the argument that “if someone wants to kill themselves, they will find a way to do it.” This age-old (but false) argument for leaving high buildings and bridges as they are and not installing any suicide barriers on them rests on the notion that any person contemplating suicide will just find another place or a way to kill themselves if at first they fail to succeed. In Bradley’s case, Cornell argued that since Bradley was so hard-working and goal oriented, he would have found some way to kill himself even if he was prevented from doing so from one of the gorge bridges.

However, this argument – that it is virtually inevitable that someone contemplating suicide will find a way to do so — is completely unsupported by any studies on the subject or by psychological literature. The overwhelming evidence is that most individuals who would jump from iconic sites are ambivalent, act impulsively, choose a specific site, and if thwarted from an attempt at that site at a particular time will rarely seek out an alternative means to kill themselves. For example, after 480 suicide deaths on the Bloor Street Viaduct in Toronto, the erection of suicide barriers led to no significant increase in suicides on other bridges in the area. Cornell had its own home-grown evidence of the folly of this argument. In October of 1991, a student jumped from the Thurston Avenue Bridge and survived. According to Rob Fishman, a Cornell alumnus, writing for the Huffington Post, this student was the only one ever to survive such a jump and, once recovered, returned to campus and graduated from Cornell. The strong inference, therefore, is that the desire to kill oneself is, for the most part, temporary and when suicide becomes more difficult, people tend to get help rather than switching to another method. Finding help is what happened in England when the formula for gas ovens was changed, and carbon monoxide levels were reduced. The suicide rate was drastically reduced because an incredibly easy way to kill oneself (death by gas oven) had been removed. The U.K. continues to have a suicide rate about one-half that of the U.S.

For the small percentage of people who are deterred by suicide prevention barriers from jumping off high bridges and then try to end their lives by some other means, the survival rate is much higher. Jumping from a high structure is fatal 98 percent of the time, making it a much more effective and lethal form of suicide than anything else available to most people, even those who have guns. By comparison, poison is only 15 percent effective; drug overdose, 12 percent; wrist cutting, 5 percent. Undoubtedly, jumping from such a high bridge or building is truly, as the old -adage puts it, a “highly effective and permanent solution to a temporary problem.”

Even Cornell itself had to finally admit that suicide-prevention barriers on bridges save lives. As a group of experts later commissioned to study the subject stated in a Report issued after the death of Bradley and two other students within a short time span, “the decision to attempt suicide may be a transient response to a particular set of emotional circumstances that resolve with time.”

Eventually, it became increasingly clear to Bradley’s parents that the only thing Cornell or the City of Ithaca had to do to save Bradley’s life, and the lives of the dozens of other students, was to install safety measures on the gorge bridges. The fix was simple: higher and suicide-proof railings could be installed, or nets could be placed underneath the bridges (or both). These simple but effective safety measures would have prevented Bradley from succeeding in his impulsive rush to end his life. However, this last line of defense against suicide was not there. Cornell and the City had done nothing to minimize or eliminate the risk of people intentionally jumping from one of the gorge bridges, despite the certain knowledge that, sooner or later, someone else would do so.

Finally, after growing increasingly frustrated with Cornell’s response, on November 21, 2011, Howard Ginsburg filed a lawsuit against both Cornell and the City of Ithaca in federal court in upstate New York in his capacity as the Administrator of Bradley’s Estate. The lawsuit charged Cornell and the City with negligence and other causes of action relating to the lack of effective suicide prevention measures on the Thurston Avenue Bridge.
An Amended Complaint was filed on December 8, 2011, with fourteen causes of action, essentially alleging that both Cornell and the City were negligent in failing to design and install adequate railings and other safety and suicide prevention measures during the reconstruction of the Bridge. The Amended Complaint further alleged that, since there was a long and tragic history of suicide by jumping from the bridges (popularly referred to by generations of Cornell students as “gorging out”), it was reasonably foreseeable that students and City residents would do the same in the future. According to the claim, Cornell and Ithaca knew or should have known the bridges were a real risk to the students and residents of Ithaca, and that the “do nothing” option amounted to gross negligence.
Cornell and the City filed motions to dismiss and for judgment on the pleadings in January 2012, and Ginsburg cross-moved to supplement the pleadings.
On March 15, 2012, the district court judge, David N. Hurd, sitting in the federal courthouse in Utica, New York, denied both motions to dismiss. The district court also denied defendants’ motions for reconsideration or reargument. Among other things, Judge Hurd rejected defendants’ argument that Bradley’s suicide was “unforeseeable,” finding that “it was clearly foreseeable that someone may commit suicide by jumping off the Thurston Avenue Bridge.” Judge Hurd further found that “as owner and controller of the Thurston Avenue Bridge, defendants had a duty to maintain that property in a reasonably safe condition to prevent foreseeable suicides.”
Finally, in the Conclusion section of his Decision, Judge Hurd found:
Plaintiff has sufficiently alleged that Ithaca and Cornell owned and controlled the Thurston Avenue Bridge and thus had a duty to maintain that property in a reasonably safe condition to prevent foreseeable suicides. Plaintiff has also adequately alleged that Ithaca and Cornell failed to fulfill that duty when they did not implement appropriate suicide prevention measures on the bridge despite having an opportunity to do so when the bridge was redesigned and reconstructed in 2006-2007.

Thus, Judge Hurd agreed with plaintiff’s position that there was overwhelming evidence in the record that Cornell had sufficient “control” over the Bridge. Cornell’s collaboration with Ithaca over the 2006/2007 redesign and reconstruction established a duty on Cornell’s part to repair and prevent a known hazard, i.e., the ease with which a person could jump from the Bridge, and to be held accountable for damages resulting from its failure to remedy this known hazard.

Once I agreed to act as counsel for Bradley’s estate in the case and had fully reviewed what had already taken place in the legal proceedings, including Judge Hurd’s decision denying defendants’ motions to dismiss, I started doing some additional research as to the correlation between college-age students and suicide. The statistics were shocking. For decades, every university, including Cornell, knew or should have known that the risk of student suicides is always a clear and present danger. A survey of 26,000 students at 70 colleges and universities found that over fifty percent of college students had suicidal “ideations;” 18% of college students had seriously contemplated suicide, and 8% had made an attempt. Ten to 15 percent of college students regularly contemplate suicide, and one to two percent actually attempt it.

These statistics meant that at Cornell, with approximately 20,000 plus students, between 2000 to 3000 students were contemplating suicide at any given point in time. Cornell, in particular, has been aware of the issue of student suicides, since the number of student suicides by jumping from campus bridges has been much higher than the national average. According to Cornell’s own Timothy C. Marchell, Ph.D., while nationwide only 2% of student suicide deaths are caused by jumping, approximately 50% of Cornell’s student suicide deaths are by jumping from bridges.

Although it would have been impossible to anticipate that Bradley would be the next Cornell student to fall victim to the siren lure of the iconic bridges and gorges surrounding the campus, it was virtually inevitable – as Judge Hurd found — that someone else would attempt to jump from one of the bridges. The only question was “when.”
History of Cornell Suicides from Bridges.

The history of suicides at Cornell left little question that successive Cornell administrations must have been painfully aware of the dangers posed by the gorge bridges. Since the opening of the first bridge over the gorges in 1897, the specter of suicide haunted Ithaca. From 1970 to 1973, there were eight suicides in Ithaca, seven associated with Cornell, and four were at the gorges. Cornell considered installing suicide prevention railings and other “safety mechanisms” on the bridges but ultimately decided not to include these expenses in the university budget. Instead, the decision was made to do nothing.

During March 1976, a young Cornell student, Judy Kram, committed suicide by jumping from one of the gorge bridges. On May 25, 1977, Judy’s father appeared before the members of the Ithaca Board of Public Works to plead that they consider erecting suicide barriers on the City’s several bridges. Mr. Kram also wrote Cornell’s president, requesting that safety structures be installed on the bridges. President Gorson responded by stating that Cornell continued to prefer bridge designs that were “functional and aesthetically pleasing.”

Undaunted, Mr. Kram then took his case to the Cornell Board of Trustees, sending each Trustee an article about the recent cluster of suicides (at least 5) during 1977 and 1978. Cornell’s response was to start keeping a file on Mr. Kram, noting “that he has become extremely overzealous on the issue.”

After yet another student death by suicide in 1978, Cornell’s vice president reminded the grieving parents that ‘since 1970, there has [only] been, on average, one suicide a year at Cornell,” as if to suggest that one suicide per year was an acceptable “attrition rate.” The note went on to bemoan the fact that “the suicide myth seems to have taken on a reality of its own ….”
In October of 1976, Cornell’s vice president wrote a memo to then President Corson, entitled, “Suspension Bridge -Aesthetics vs. Suicide Deterrent,” noting the importance of aesthetics and concluding: “We do not program our design efforts for suicide prevention.”

It is not surprising, therefore, that over the years Cornell earned the nickname, Suicide U,” and Ithaca was often referred to as “the suicide capital.” The attraction of the gorges and the bridges over them continued to have a macabre hold on the imaginations of both Cornell students and graduates. One Cornell graduate returned ten years after his graduation to jump to his death into the gorge.

In the fall of 1977, however, Cornell was finally forced to take some limited safety measures following a series of three suicides by jumping into the gorge in rapid succession from the university-owned Suspension Bridge. Cornell declared a “mental state of emergency” and installed “suicide bars” (but no netting) on the Suspension Bridge. Unfortunately, however, neither Cornell nor the City of Ithaca, which owned the other bridges spanning the gorges on or near the Cornell campus, took steps to place any “means restrictions” on any of these other gorge bridges, which would have made it more difficult for a student to end his or her life by jumping from one of the bridges.

Two years later, on April 13, 1979, the body of a missing Cornell student was recovered from Fall Creek, which runs through one of the gorges. The boy’s father issued an “open letter” to Cornell’s president, noting that his son, like Bradley Ginsburg 31 years later, had no history of emotional problems, had graduated from high school with the highest awards and honors, came from a relatively happy and stable family, and had entered Cornell with otherwise excellent credentials.

The following month, in May of 1979, Cornell approved plans to add a 6 ½ foot metal bar railing to the Collegetown Bridge, but when opposition emerged, including complaints that the Suspension Bridge’s “suicide bars” created a “prison-like atmosphere,” the plan was shelved.

In short, despite the fact that Cornell and the City of Ithaca were repeatedly placed on notice by parents, community members and experts as to the need for urgent action to prevent suicides from bridges, defendants did nothing with regards to the Thurston Avenue Bridge or any other gorge bridges.

Between 1990 and 2010, 29 people attempted suicide by jumping off gorge bridges. Twenty-six were successful. During this 1990-2010 period, the tragic history of suicides continued to prompt repeated calls for suicide prevention measures to be installed on all bridges in the area. In November 1994, for example, Ithaca Police Officer Dan Slattery proposed to the City that “netlike chain-link safety barriers [be installed] about 15 feet under the five bridges on campus …” However, Cornell’s response to two student deaths in November 1994 was to deny that there was any “problem.” David I. Stewart, Cornell’s Director of Community Relations, blamed the bad press on “mythology,” stating: “There is a myth surrounding the number of suicides here. There is not a larger than average number of suicides on the Cornell campus.”

Finally, after the death of Bradley and two other students within a short time frame in February and March 2010, one of Cornell’s leading psychiatrists acknowledged that the gorge bridges were “iconic hot spots” drawing people to them in moments of despair, and that “means restrictions” at such spots saved lives.

Bridge Safety Versus Aesthetics.

Cornell was not the only school facing the suicide by jumping problem. In 2003, New York University experience two suicides inside the Bobst Library. The students jumped from the open-air crosswalks inside the library. NYU’s response was immediate; it constructed Plexiglas barriers on all stairways and crosswalks on all levels. In 2009, a third student managed to scale these barriers and jump to his death. This time, the University went even further, constructing a floor to ceiling metal barrier on each level. Unlike Cornell, NYU felt three suicides over three years was too many. Baruch College, another New York City college had similar suicides and, like NYU, responded quickly. Two suicides by jumping out of windows of a dorm on 18th Street in Manhattan led to the immediate placement of bars on the windows. A May 2014 suicide at a college building at 17 Lexington Avenue in Manhattan was met with similar action, including the formation of a college safety “Suicide Squad” to help curtail suicide attempts.

Everyone knows that suicide attempts from high bridges or buildings are almost always lethal. As the eminent suicide expert, Dr. James Motto, eloquently put it, the jumping from an iconic hot spot, such as the Ithaca Gorge Bridges or the San Francisco’s Golden Gate Bridge, “is seen as sure, quick, clean and available, which is the most potent factor…It’s like having a loaded gun on the table.”

Nor is there any serious question that safety barriers on bridges and buildings are effective in preventing suicides. In 2001, the U.S. Dept. of Health and Social Services developed a “National Strategy for Suicide Prevention,” emphasizing the crucial importance of means restrictions for preventing suicide. The National Suicide Prevention Lifeline Position Paper dated June 16, 2008, definitively stated: “The use of bridge barriers is the most effective means of bridge suicide prevention.”

Iconic “hot spots” around the world like the Memorial Bridge in Augusta, Maine, the Eiffel Tower in Paris, the Empire State Building in New York, and the Bloor Street Viaduct in Toronto were all strong magnets for suicide seekers. Once suicide barriers were erected on all of them, the suicide rate dropped to nearly zero.
The puzzling question then is: If there have been so many suicide attempts from iconic high bridges or buildings, and they almost always result in death, why is it that effective suicide prevention barriers had not been installed at Cornell? As we continued to investigate, it became readily apparent that many people – including influential college professors and administrators – felt that the installation of effective physical barriers would detract from the aesthetic beauty of the iconic bridges and buildings that attract potential suicide victims. The art and architecture departments of most colleges and universities often have a substantial influence on the design or modification of campus bridges or tall buildings, while the corresponding lobby for suicide prevention through the use of physical barriers is virtually non-existent. Colleges like Cornell are willing to spend millions of dollars on first-class mental health counseling programs. Unfortunately, not all students, such as Bradley, seek help and do not show any outward signs of distress.
In order to prevent suicides by jumping from high places, there must be a recognition that to increase safety on bridges there may be some minimal negative effect on aesthetics. This trade-off is both a moral and a legal imperative, which many institutions and governmental entities have been slow to accept. As Dr. Motto has emphasized: “If people started hanging themselves from the tree in my front yard, I’d have a moral obligation to prevent that from happening. I’d take the limb off, put a fence around it. It’s not about whether the suicide statistics would change, or the cost, or whether the tree would be as beautiful…A barrier would say, “Society is speaking, and we care about your life.”

In other words, no one knows who will pick up an available gun and shoot, but logic and reason tell us with a high degree of certainty that over a period of time, someone will. Put another way, while it is impossible to identify all those persons who are suffering from severe mental health issues and will impulsively jump, without effective means restrictions, it is virtually certain that someone will try to commit suicide and succeed. Thus, the inescapable conclusion that our evidence showed, and which the federal court ultimately accepted in the Ginsburg case, was that cities and universities that have iconic suicide bridges on or near them are playing “Russian Roulette” with young people’s lives by not implementing effective suicide-prevention measures on those bridges.

Thus long before Bradley jumped to his death from the Thurston Avenue Bridge there was already a widespread consensus among experts that barriers were the most effective means of preventing bridge suicides. Cornell, in particular, knew about the importance of bridge barriers in preventing suicides. Nevertheless, as of February 2010, when Bradley jumped to his death, neither Cornell nor the City of Ithaca had taken any effective steps to design suicide-prevention barriers on the gorge bridges, such as specialized high railings or netting, that had proven effective at other “suicide bridges.”

Another notable exception to the general worldwide focus on suicide prevention in the design and construction of suicide prevention barriers on iconic bridges and buildings was the Golden Gate Bridge in San Francisco, where over 1600 persons jumped to their death since it opened on May 27, 1937. A record 46 people plunged to their deaths from that bridge in 2014 alone.

The railing on the Golden Gate Bridge, like that on the Thurston Avenue Bridge in Ithaca and most of the other gorge bridges, is only four feet high, and a short walk from a parking lot. The original plans in 1937 called for railings of 5 ½ feet, but for reasons that remain obscure, the height was reduced to four feet. Over the years, there were seven unsuccessful campaigns to persuade or pressure the Golden Gate Bridge, Highway, and Transportation District to erect effective suicide barriers. This failure to install effective suicide prevention barriers on the Golden Gate Bridge were particularly frustrating to mental health professionals since a 1978 study entitled, “Where Are They Now?”, by Richard H. Seiden, a former professor at the University of California, Berkeley, School of Public Health, showed that, of 515 people who had been restrained from attempting suicide by jumping off the bridge during the period from 1937 to 1971, over 90% were still alive in 1978 (the year he conducted his study) or had died of natural causes. In other words, if prevented from committing suicide, there is less than a one in ten chance that the person will try again.

In March 2005, the Golden Gate Bridge District directors voted to authorize a $2 million feasibility study but then delayed the funding for the study. It was not until 2014 that the directors reversed their longstanding policy and voted for using toll money to supplement state and federal funds for the implementation of suicide barriers on the bridge. The plan calls for a $66 million stainless-steel net system 20 feet below the sidewalk. One of the reasons that the Golden Gate Bridge directors changed their views on the subject was that there was mounting evidence introduced by psychiatric experts and mental health professionals that the suicidal impulse is typically fleeting, especially in young people. The average age of the jumpers also dropped alarmingly; while previously the largest group of Golden Gate Bridge suicides were between 35 and 45, suicides by 20 and 30-year-olds became more common. Some psychologists explained that the brains of teenagers and young adults were still developing, so they are subject to the transitory urge to commit suicide more than fully mature adults. Another factor in play in the change of heart by the 19-member bridge board was the fact that, while it was once an exclusively male institution, seven members of the board are now women. Senator Barbara Boxer, who had served on the board, was instrumental in getting a clause inserted in the 2012 federal transportation bill authorizing funds for the “installation of safety barriers and nets on bridges.”

Cornell and the City of Ithaca Reconstructed the Thurston Avenue Bridge during the 2006/2007 Time Period, But Failed to Install Effective Suicide Barriers

When Cornell and the City of Ithaca undertook to redesign and reconstruct the Thurston Avenue Bridge during 2006 and 2007, they ended up subordinating any concerns for suicide prevention to the competing and partially inconsistent goal of maintaining an “aesthetically pleasing” bridge design. In the June 6, 2002, Minutes of Project Meeting No. 2, passing reference was made to the “Use [of] railings with all vertical elements to minimize ‘climbers.’” However, Cornell and the City left little question as to their main priority: “aesthetically pleasing bridge railings would be preferred.” The July 9, 2002 “Cornell Information Meeting Minutes” noted that the only two priorities for the railing design were (1) meeting New York State Dept. of Transportation (“NYSDOT”) crash test criteria, and (2) aesthetics. The reasoning was: “[T]he railing design is a high priority due to the aesthetic nature of the area and the function of the bridge as a ‘gateway’ into the Cornell campus.” “Suicide prevention” was barely mentioned in the planning documents.

Indeed, when the new railings on the Thurston Avenue Bridge were finally built, they were actually lower than the original railings. Although the specifications called for an increase in the railing height from 3’ 5” to 4’7,” this intended increase was illusory. The reason for this is that, before reconstruction, there was no concrete parapet wall (sometimes referred to as a “concrete footing”) between the surface of the Bridge and the bottom of the railings. However, during the reconstruction, there was a “concrete footing” installed that was 18” high at the bottom of the railing. A person could easily stand on this parapet wall, making it much easier to climb over the railing. Before the new construction, the distance from the top of the parapet wall to the top of the railing was 3’7.” The new railing was, in reality, only 3’1” high, making the new railing four inches lower than the older 3’5” railing it replaced. In other words, the concrete footing completely defeated the purpose of raising the railing.

The railing was also designed with an inward curvature. If a person wanted to jump over the new bridge railing, he/she would simply stand on the concrete footing and hoist themselves up over the railing, with the curvature of the railing making it easier. Thus, the curved railings had absolutely nothing to do with enhanced pedestrian safety or suicide prevention, and neither Cornell nor the City took the trouble to have a study conducted to test this novel theory, i.e., that curved railings enhance bridge safety.

In fact, even before the reconstruction of the Bridge was completed, documents obtained from Cornell during the “discovery” process, where each side produces relevant documents requested by the other side, revealed that Cornell knew the railing design it adopted was inadequate to deter climbers. In an email exchange, dated February 22 and 23, 2006, between Frank Perry, Cornell Project Manager, and Curtis Ostrander, Cornell Police Chief, Mr. Perry wrote: “I do not see anything to keep people from crawling over the railing….The railing is curved to the inside as shown in the presentation, but only 1.4 meters or 4’7” high.” Police Chief Ostrander agreed: “Obviously I’m not happy with the low height of the railing …” Their concerns, however, were apparently buried.

Cornell Denies Any Involvement In or Responsibility For the Reconstruction of the Thurston Avenue Bridge

During the ensuing federal litigation by Bradley Ginsburg’s estate against both Cornell and the City of Ithaca, Cornell denied any involvement in the 2006/2007 reconstruction of the Thurston Avenue Bridge, arguing that the City held title to the Bridge and was, therefore, completely responsible for its redesign and reconstruction. However, one of the documents that we obtained during the discovery process in the case was a May 2002 study commissioned by Cornell and conducted by the consulting firm of Sasaki Associates Inc. This study noted that while the City owned the Bridge, Cornell owned the property on both sides needed for the redesign and reconstruction of the access roads leading to the Bridge. Indeed, Cornell had considerable leverage over the design of the reconstruction project because the City needed to obtain an Easement and Right of Way (“ROW”) from Cornell before it could finalize the design of the bridge project and get approval from the NYSDOT. Cornell finally agreed to “donate” this easement and ROW to Ithaca for no compensation, only after receiving the City’s tacit agreement to incorporate Cornell’s recommendations into the final plan.

Also, the City and Cornell, along with some other interested parties, entered into a formal “Partnership Agreement” during February-March 2006 for purposes of the Bridge reconstruction project. The design of the bridge railings fell within the area of Cornell’s responsibility. Cornell’s Sasaki Report showed that considerable time, money and effort was spent studying various means to protect the safety of pedestrians and bicycles. However, Cornell conducted absolutely no studies on the design of bridge railings that would prevent any further suicides from the Bridge. Apparently not one dime was spent studying the means restrictions on iconic bridges around the globe to determine what were the most effective suicide barriers. Was a railing height of 1.4 meters (4 ½ feet) high enough to deter climbers and prevent suicides? Was a curved railing a help or a hindrance to a person attempting suicide by jumping from the Bridge? If curved railings were a suicide deterrent, why weren’t they being used on other iconic bridges that attracted suicide seekers? Apparently neither Cornell or the City of Ithaca deemed it important to answer these questions, with tragic results.

Moreover, Cornell had no “suicide prevention” consultant focused on eliminating the risk of future suicides during the Bridge reconstruction. No one from Cornell or the City ever sounded the alarm (or even questioned) as to whether the addition of an 18” footing at the base of the railing created a hazard by making it easier for someone to jump the railing.

Ithaca’s Mayor Declares a “Public Health Emergency” After Three Cornell Students Commit Suicide from Gorge Bridges Within the Time Span of a Few Weeks

After the six suicides of Cornell students during the 2009/2010 academic year, with three of those deaths (including Bradley Ginsburg’s) taking place at the gorge bridges within a few weeks of each other, Ithaca’s Mayor declared a public health emergency on March 26, 2010. This declaration permitted Cornell to erect and pay for temporary chain link fences on all three City-owned bridges crossing the gorges, including Thurston Avenue Bridge.

During the next two years, from mid-2010 through 2012, the threat and then the reality of the Ginsburg case in federal court, as well as the overwhelming public outcry to finally put an end to suicides from the gorge bridges shocked Cornell and the City of Ithaca into taking some effective action. On August 4, 2010, the City Common Council, at Cornell’s request, issued a Resolution extending the public health emergency and allowing Cornell to erect and pay for the replacement of the temporary chain link fences with black-coated, “suicide-proof” rectilinear fences on all three City-owned bridges.

Cornell also took the lead in the redesign of other suicide prevention measure, such as security surveillance cameras and it paid for the installation of nets underneath the Bridge to catch any jumper who might succeed in scaling the railings. An agreement dated December 21, 2011, between Cornell and the City, gave Cornell primary control over the design of other safety components on the Bridge to prevent additional suicides. Cornell hired the consulting engineers/designers who designed these additional means restriction measures, and on April 13, 2011, Cornell published on the internet its “Bridge Means Restriction Study.”

In short, when Cornell finally decided that the time had come to install effective “means restrictions” on the gorge bridges, it knew exactly how to take control and accomplish that goal, regardless of whether they were technically “City owned” or not.

The Summary Judgment Motions

After voluminous document discovery and depositions of at least one dozen witnesses from Cornell and the City of Ithaca, as well as various consultants, experts and Mr. and Mrs. Ginsburg themselves, Cornell and the City, both filed motions for summary judgment. The defendants claimed that the Court should not permit the case to move forward to a jury trial and that by law they had no legal responsibility for Bradley’s death.

Even though Judge David N. Hurd had already ruled in denying defendants’ motions to dismiss that the plaintiff (Bradley’s Estate) did not have to prove that it was specifically foreseeable that Bradley would try to commit suicide by jumping from the Bridge, Cornell raised this issue once again in its motion for summary judgment. It submitted an expert report from a psychiatrist, Paul Barreira, M.D., for the apparent purpose of establishing that Bradley’s suicide was not “foreseeable.” Dr. Barriera speculated that since Bradley had left a suicide note that bore the date of June 6, 2009, about eight months before his death, that he “must” have been contemplating suicide for at least eight months, and that his decision to kill himself was carefully planned, not a fleeting impulse. Cornell’s expert further argued that, since Bradley was unquestionably a “hard worker,” if his “goal” were to commit suicide, he would have found a way to accomplish his goal, regardless of whether or not it was easy to jump from the Thurston Avenue Bridge.

However, a closer analysis of Bradley’s suicide note revealed that the date of “6/6/09” for his suicide note must have been a mistake since Bradley did not even own the laptop computer on June 6, 2009, which was not purchased until two months later, during August 2009. Moreover, Bradley was not a student yet at Cornell on June 6, 2009, and yet Bradley’s suicide note made references to the AEPi fraternity at Cornell. The inescapable conclusion, therefore, was that the note must have been created after Bradley had arrived at Cornell in the late summer of 2009, and most likely in the few days before his death on February 17, 2010, when he was doing extensive research on topics involving depression and suicide.

Cornell’s argument that because Bradley was a “hard worker” and very goal oriented, he would have found an alternative means to kill himself, ignored the scholarly research showing that the overwhelming majority of people who try to commit suicide and survive, do not make another suicide attempt. Rather, they are more likely to obtain help from mental health professionals and then go on to live normal and productive lives. The more reasonable explanation, therefore, was not that Bradley would have persisted on his “mission” to kill himself, but that if the Bridge had effective suicide prevention measures in place, Bradley’s suicidal impulses would have been thwarted. Then he would have sought psychiatric counseling to manage what was obviously his first serious encounter with self-destructive impulses.

By denying Cornell’s motion for summary judgment, the district court appears to have favored the opinion of plaintiff’s expert, Dr. Michael Bernstein, which was that Bradley was having a transitory bout with depression. Dr. Bernstein believed Bradly’s suicide was an impulsive act, and that if effective means restrictions were in place on the Bridge, it is likely that his death would have been prevented. It was also pointed out that all factors present at the time of Bradley’s suicide indicated that he was looking towards the future until just before his death. He had recently applied for and was accepted for a camp counselor’s job that coming summer. He had asked his mother to send him his passport for a fraternity trip to Montreal the following week, and he had just changed some of the courses he was taking that Spring semester. In short, there was absolutely nothing about Bradley’s life that indicated he was depressed or contemplating ending it.

Dr. Bernstein also noted in his expert report that numerous studies had shown that adolescents and young adults are more prone to impulsive behavior. A study found that 10% to 15% of college students are contemplating suicide at any given time, this means that at Cornell, with approximately 20,000 students, between 2000-3000 were thinking of suicide every day. In any event, Judge Hurd ruled that Bradley’s state of mind was largely irrelevant to the issue of Cornell’s duties and responsibilities.

After an extensive legal briefing on the various issues by all parties, on March 24, 2014, the district court substantially denied both Cornell’s and the City’s motion for summary judgment. The district court declined to dismiss plaintiff’s negligence claims against Cornell based upon a “premises liability” theory for wrongful death and personal injuries. The court found that “an issue of material fact remains for a jury as to whether Cornell exercised sufficient control over the design, construction, and maintenance of the Thurston Avenue Bridge to justify holding it liable, with Ithaca, for injuries caused by alleged hazards on the bridge.” Judge Hurd reached this decision based on a finding that “Cornell provided invaluable assistance and input during the design phase of the bridge reconstruction project.” He noted that “Cornell also retained Sasaki [Associates] to study pedestrian, vehicular, and bicycle traffic and other campus safety matters as part of the bridge’s redesign.” The court found, in its written decision and order, that “a rational juror could view this … as evidence of Cornell’s understanding that [the Thurston Avenue renovation project] was a joint endeavor with Ithaca.” Further, Judge Hurd noted that “Cornell employees participated directly in numerous meetings with representatives for Ithaca ….” The district court also relied on the fact that after the third suicide in March 2010, “Cornell paid for, installed and maintained temporary fencing and permanent netting.” Finally, Judge Hurd found that “whether Thurston Avenue Bridge was reasonably safe in light of the allegedly foreseeable risk of future suicide attempts is a factual issue to be determined by a jury.”

Although the district court dismissed the Amended Complaint’s negligence theory based upon a special in loco parentis and contractual relationship, this was of no real practical significance since the negligence claims “based on premises liability for wrongful death and personal injuries … remain[ed] ready for trial.”

One of the reasons why Judge Hurd denied defendants’ summary judgment motions was that Ginsburg’s “premises liability” case against Cornell was based on the well-settled law that the existence of a duty depends on whether the risk to be guarded against is one which would normally be anticipated or foreseen. Courts had almost uniformly found that a property owner “may be held liable to a plaintiff for harm suffered … if the landowner (a) had actual or constructive knowledge that injurious conduct was likely to occur or recur, and (b) fails to control that conduct despite the opportunity to do so.” Thus, a college may be found to have breached its duty if it fails to take minimal precautions to protect its students from reasonably foreseeable acts. Moreover, since the issue of whether a dangerous or defective condition existed usually depends on the peculiar facts and circumstances of each case, courts leave such fact-intensive questions to the jury, rather than deciding them before trial in response to a summary judgment motion. If the defendant was involved in creating the hazardous condition, a plaintiff is not even required to establish that it had “prior notice.”

The record in the Ginsburg case overwhelmingly demonstrated that Cornell had sufficient “control” over the Thurston Avenue Bridge and its 2006/2007 redesign and reconstruction, establishing a duty on its part to repair and prevent a known hazard. The hazard was the ease with which a person could jump from the Bridge, and the court held that Cornell could be held accountable for damages resulting from its failure to remedy this known hazard. The responsibility was especially true since Cornell had a detailed knowledge of the long tragic history of suicides from the Thurston Avenue Bridge and other bridges, and that it was common knowledge on campus that “gorging out” was a relatively painless way to end one’s life. In other words, Cornell’s liability arose from its “failure to exercise reasonable care to prevent or minimize foreseeable future danger.” Cornell also assumed joint responsibility with the City to improve safety on the Thurston Avenue Bridge and represented that one of the major objectives was to design bridge railings that would prevent suicides. Having assumed responsibility for bridge safety, we argued that Cornell was liable for having failed to design bridge “means restrictions” that achieved those objectives.

The Settlement

Judge Hurd scheduled jury selection for September 29, 2014, with the trial to commence on October 1, 2014. On the eve of trial, Cornell offered to settle the matter in consideration of the establishment of a full perpetual scholarship in Bradley’s name. The University initially placed a value on the scholarship (in writing) of $1.5 to $1.6 million. According to a letter from Cornell’s counsel, dated August 23, 2014, that was the amount of an “endowment [that] would be required for a private donor to establish a scholarship with the terms we are proposing.

Plaintiff’s calculations placed a value of a full perpetual scholarship at a slightly higher number, i.e., $1.8 million. These calculations were based upon the current Cornell cost of tuition, room and board, and other miscellaneous college expenses was $60,000 per year. The value of the scholarship to the Estate would, therefore, be, at a minimum, 30 years times $60,000 per year, or $1.8 million. On August 15, 2014, Plaintiff wrote to the district court explaining this valuation.

Bradley’s Estate also received a “low-ball” settlement offer from the City of Ithaca for $75,000, which was increased to $100,000. On September 10, 2014, shortly before a scheduled settlement conference with the district court regarding a settlement with the City, Howard Ginsburg — against my advice — accepted Cornell’s offer of a full perpetual scholarship in Bradley’s name, and the City’s offer of $100,000, thus terminating the case without a trial.

The suicide deaths of Bradley Ginsburg and two other Cornell students within only a few weeks of each other in 2010 finally shook Cornell University and the City of Ithaca out of their decades-long refusal to recognize the need for the installation of effective suicide-prevention measures on the other bridges spanning the gorges traversing the Cornell campus. With the City’s consent, Cornell quickly erected some temporary chain link fences on Thurston Avenue Bridge, which were later replaced with sufficiently high and specially designed railings that were intended to prevent potential jumpers. These specialized railings were backed up by the installation of netting below the Bridge, and the installation of security cameras.

The results were dramatically positive: There have been no reported suicide deaths by jumping from any of the gorge bridges since these safety measures were installed. There is also no evidence that a student or student who was thwarted in their intent to jump from a gorge bridge committed suicide by alternative means.

One “take away” from the Ginsburg case is that litigation and heightened public awareness are often an effective means to force universities and municipalities to acknowledge the importance of physical suicide prevention barriers on major bridges and buildings. Simply put, universities and municipalities have a legal obligation to take reasonable safety measures to protect students in particular and all citizens in general who may be attracted to iconic bridges and buildings. These bridges and buildings are known magnets for those who may seek to end their lives by jumping to their deaths. Colleges and universities that ignore this obligation do so at substantial risk since the grieving families of suicide victims have shown an increased willingness to use the judicial system to hold them accountable.

1. See Naples News article, “Study Recent Virginia Tech Settlement Bring Spotlight to College Suicide,” January 1, 2012.
2. “Lethal Beauty/The Allure: Beauty and an easy route to death have long made the Golden Gate Bridge a magnet for suicides,” Edward Guthmann, SF Gate, October 30, 2005.

3. Id.
4. Id.
5. Id. at 27.
6.Howard I. Ginsburg, as Administrator of the Estate of Bradley Marc Ginsburg v. The City of Ithaca and Cornell University, United States District Court for the Northern District of New York, Civ. No. 5:11 cv 01374.

The district court based its decision on the established law that a landowner (or anyone else who “controls” property) “has a duty to exercise reasonable care under the circumstances in maintaining its property in a safe condition,” citing In re Kush v. City of Buffalo, 59 N.Y. 2d 26, 29 (1983). See also, Pearce v. Holland Property Management, Inc., 2009 U.S. Dist. LEXIS 47723*12 (N.D.N.Y. 2009) (the primary focus in the inquiry on duty concerns “whether the defendant’s conduct created a foreseeable zone of risk, not whether the defendant could foresee the specific injury that actually occurred,” citing Stanford v. Kuwait Airways Corp., 89 F. 3d 117, 125 (2d Cir. 1996); and DeVeau v. United States, 833 F. Supp. 139, 142 (N.D.N.Y. 1993) (a plaintiff must demonstrate “that there was a dangerous condition and that either the defendant affirmatively created … or had notice [of it] …, after [such] knowledge or notice was received, the defendant had a reasonable opportunity to correct the dangerous condition …, and that the defendant … failed to correct the condition within a reasonable time thereafter”).

7.See National Research Consortium of Counseling Centers in Higher Education, “New Data on the Nature of Suicidal Crises in College Students: Shifting the Paradigm,” Dunn et al, Professional Psychology, Research and Practice, Vol. 40, No. 3, 213-222.

8.See “Ithaca Is No Longer Fences,” by Alex Bores, The Cornell Daily Sun, 11/29/11; see also, in the “2006 National College Health Assessment,” it was found that 10% of students are contemplating suicide at any given time, with 1.3% reporting that they actually attempted suicide. “A Public Health Approach to Campus Mental Health promotion and Suicide Prevention,” Gregory T. Ells, PhD, Director of Counseling and Psychological Services, et al, Harvard Health Policy Review, Volume 13.

9.See article written by Timothy C. Marchell, PhD, M.P.H. Cornell’s Director of Mental Health Initiatives, for the Ithaca Journal on June 27, 2011, entitled, “History, research and responsibility show the need for safer bridges.”
10. See Rob Fishman, “Cornell Suicides: Do Ithaca’s Gorges Invite Jumpers?” Huffington Post, 3/11/10.
11. See guest editorial in the Ithaca Journal entitled, “Moral Concern: Safe Bridges,” dated April 15, 1978, written by Nina Miller, the founder of the Suicide Prevention and Crisis Services (SPCS) of Tompkins County, and W. Jack Lewis, Director, Cornell United Religious Work, calling for means restriction on Ithaca’s gorge bridges.
12. See Huffington Post article, Rob Fishman, “Cornell Suicides: Do Ithaca’s Gorges Invite Jumpers?”, 12/16/2010, reporting on the suicide of Bradley Ginsburg in February 2010; three weeks later, William Sinclair, and the very next day, Matthew Zika. See also, Inside Higher Education, “Does 6 Deaths in 6 Months made Cornell A ‘Suicide School?”
13. See “Means Restriction on Ithaca’s Bridges: A Key Element of a Comprehensive Approach to Preventing Suicide,” prepared by Dr. Tim Marchell (updated: April 14, 2011).

14. See New York Times (“NYT”) article dated 11/5/94, “Another Fatal Plunge has Cornell Asking Whether Its Gorges Inspire Student Suicides.”

15.See Inside Higher Ed. (updated 3/16/2010, “Does 6 deaths in 6 months make Cornell ‘suicide school?”, Jennifer Epstein, reprinted in USA Today.

16. Dr. Tim Marchell, Paper, “Means Restriction on Ithaca’s Bridges, A Key Element of a Comprehensive Approach to Preventing Suicide,” (updated April 14, 2011), at 5-9.

17. “The Final Leap: Suicide on the Golden Gate Bridge,” John Bateson, at p. 141.
See at 1. See also, Gannett Health Services: website section “Notice & Respond,” Cornell website (, at page 4 of 5.
18. See Article, SF Gate, 11/03/05, by Carolyn Zinko.
19. Id.
20. New York Times, “Suicides Mounting, Golden Gate Looks to Add a Safety Net, Carol Pogash, March 26, 2014.
21.New York Times, March 26, 2014, “Suicides Mounting, Golden Gate Looks to Add a Safety Net,” Carol Pogash.
25.Public opinion also seems to have changed in favor of suicide prevention since 1995, when the number of bridge suicides was approaching 1000 and a radio disc jockey offered a case of Snapple to the family of the 1000th jumper. 26.Id.
28. Howard I. Ginsburg, as Administrator of the Estate of Bradley Marc Ginsburg v. The City of Ithaca and Cornell University, United States District Court for the Northern District of New York, Civ. No. 5:11 cv 01374.
29.Cornell University North Campus Circulation Study, prepared for Cornell University by Sasaki Associates, Inc., dated May 2002 (“Sasaki Report”).
30.Cornell’s expert report submitted in the district court directly contradicted the Report that Cornell commissioned shortly after Bradley’s death, which pointed out that the gorges are iconic spots and that “means restriction is critical to preventing suicides by jumping and individuals almost always do not find a second method when they are obstructed from using the first … that most individuals who would jump from iconic spots are ambivalent, act impulsively, choose a specific site, and if thwarted from an attempt at that site at a particular time, will survive.”
31.Although New York courts have generally rejected the doctrine of in loco parentis at the college level, New York law has recognized that a duty may be found to exist where a college encourages students to participate in an activity and takes affirmative steps to regulate that activity. See, e.g., Hores v. Sargent, 230 A.D. 2d 712, 646 N.Y.S. 2d 165 (2d Dept. 1996) (community college found liable for failure to take reasonable precautions for the safety of participants in a college-organized bicycle trip); see also, Rothbard, 652 N.Y.S. 2d at 148.

32.The federal court for the Northern District of New York, which is where the Ginsburg case was pending, had previously considered a “premises liability” case involving a Cornell fraternity. See Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153 at *4 (N.D.N.Y. January 26, 1999). In the Lloyd case, the plaintiff was a Cornell student who was pledging at the defendant fraternity. He sued the national and local chapter of the fraternity for the injuries he sustained as a result of “hazing” by members of the fraternity. The court granted defendant’s summary judgment motion, finding that the factual record was insufficient to find that Cornell was “actively involved” in the fraternity hazing practices on campus. In Lloyd, as in the Ginsburg case, Cornell argued that a college may only be held liable for “premises liability” where plaintiff can show a physical defect made the premises unreasonably safe, and that the defendant college was negligent in not maintaining the premises in a reasonably safe condition, citing Basso v. Miller, 40 N.Y. 2d 233, 386 N.Y.S. 2d 564 (1976). See Lloyd at *11. However, the court in Lloyd pointed out that Cornell “sees the issue too narrowly,” and that a college “may be held liable to a plaintiff for harm suffered – even where the plaintiff engages in a voluntary activity – if the [college] (a) had actual or constructive knowledge that injurious conduct was likely to occur or recur, and (b) fails to control that conduct despite the opportunity to do so. See Lloyd, citing Oja v. Grand Chapter of Theta Chi Fraternity, 680 N.Y.S. 2d 277, 278 (3d Dept. 1998).
33.See Campbell v. Cunningham Natural Gas Corp., 164 Misc. 1, 298 N.Y.S. 200, 204 (Sup. Ct. 1937), citing the landmark case on “proximate cause” decided by the New York State Court of Appeals in a decision written by Judge Benjamin A. Cardozo: Palsgraf v. Long Island R.R. Co., 248 N.Y. 399, 344 (1928); see also, 65 C.J.S. Negligence, Sec. 4(1) & 4(3).
34.Lloyd v. Alpha Phi Alpha Fraternity, 1999 WL 47153, at *4 (N.D.N.Y. Jan. 26 1999). In Lloyd, the court distinguished the facts before it from the case of Furek v. University of Delaware, 594 A. 2d 506 (Del. 1991), where the Delaware Supreme court found that the university did, in fact, have a duty to prevent hazing on campus when there was at least a five year record prior to that date of plaintiff’s injuries that the university knew of past hazing incidents that caused harm to students, and that it was “common knowledge on campus” that hazing occurred. See Furek, 594 A. 2d at 520-521. Prior to deciding Lloyd, the United States District Court for the Northern District of New York had previously decided another case involving Cornell’s liability for “premises liability.” See Nieswand v. Cornell University, 692 F. Supp. 1464 (N.D.N.Y. 1988), the Court denied Cornell’s summary judgment motion, recognizing that a property owner has a “duty to take protective measures” when it knows or has reason to know of an existing dangerous condition, citing Nallan v. Hemsley-Spear, Inc., 50 N.Y. 2d 507, 429 N.Y.S. 606, 613 (1980). In Nallan, where the plaintiff was shot by an unknown assailant in the lobby of a building where there were 107 reported crimes during the 21 months before the shooting, the NYS Court of Appeals found that “a rational jury could have found from the history of criminal activity … that a criminal incident in the lobby was a significant, foreseeable possibility.” 50 N.Y. 2d at 520, 429 N.Y.s. 2d at 613-614. See also, Sherman v. Concourse Realty Corp., 47 A.D. 2d 134, 136, 365 N.Y.S. 2d 239, 242 (2d Dept. 1975).
35.See Miller v. State, 62 N.Y. 2d 506, 514, 478 N.Y.S. 2d 829, 833 (1984) (defendant has a duty to take “minimal security precautions,” such as locking a dormitory’s doors); see also, In re Kush, 59 N.Y. 2d at 33-34.
36. See Pandekakes v. United States, 2000 U.S. Dist. LEXIS 186 (S.D.N.Y. 2000).
37. See Nieswald, 692 F. Supp. at 1469, where the court found that an “implied contract” existed between Cornell and its students since Cornell had assumed responsibility to maintain effective security measures on campus. Cornell was slo on notice that “the problem of propped open doors was well known,” and that “the University failed to take steps to resolve the problem. “ Nieswand, at 1471.