## Facts

- Henry Liu, a journalist living in the United States and a critic of the Republic of China (ROC) government, was shot and killed outside his home in Daly City, California.
- The killing was carried out by two gunmen acting on orders of Admiral Wong Hsi-ling, the ROC Defense Intelligence Bureau (DIB) director.
- Wong recruited gang members, used ROC facilities and DIB resources, sent participants to a DIB training school, and provided DIB-compiled intelligence about Henry Liu.
- ROC criminal tribunals convicted Wong and others of conspiracy to commit murder, finding Wong acted from a personal grudge, without authorization from other officials, and in violation of ROC law and DIB rules.
- Helen Liu sued the ROC in federal court seeking damages, asserting California wrongful death (including respondeat superior), RICO, and civil-rights conspiracy claims.
- The district court required plaintiff to rely solely on ROC tribunals’ findings, then dismissed the ROC, holding Wong acted outside the scope of employment and the act of state doctrine barred revisiting ROC tribunals’ findings.

## Issues

1. Whether the FSIA tortious activity exception removed the ROC’s immunity for an assassination committed in the United States by agents allegedly acting within the scope of employment.
2. Whether, under California respondeat superior law, Wong’s conduct could be treated as within the scope of his employment for vicarious liability.
3. Whether the FSIA discretionary function limitation preserved immunity for the conduct at issue.
4. Whether the act of state doctrine barred adjudication or required U.S. courts to accept ROC tribunals’ findings about authorization and motive.

## Decision

- The Ninth Circuit reversed the dismissal of the ROC and remanded for further proceedings.
- The FSIA tort exception applied because the wrongful act occurred in the United States and was attributable to agents acting within the scope of employment as alleged.
- Under California law, the ROC could be vicariously liable because the assassination was sufficiently job-related given Wong’s use of official authority, DIB resources, and state facilities, even if forbidden and criminal.
- The FSIA discretionary function limitation did not apply because Wong had no lawful discretion to commit murder prohibited by ROC law.
- The act of state doctrine did not bar the suit or prevent the court from examining or departing from ROC tribunals’ characterizations of Wong’s authorization and motives.

## Legal Principles

- Under the FSIA, a foreign state is not immune for tortious acts occurring in the United States when committed by the state or its agents acting within the scope of employment.
- Scope of employment under California respondeat superior can include misconduct that is forbidden or criminal if it is sufficiently related to the employee’s duties and is a foreseeable outgrowth of the employment.
- The FSIA discretionary function limitation does not protect conduct that violates the foreign state’s own laws, including core criminal prohibitions such as murder.
- The act of state doctrine is prudential and context-dependent; it does not require abstention where the tort occurred in the United States and involves conduct universally condemned, and where adjudication is unlikely to interfere with foreign policy.

## Conclusion

The Ninth Circuit held that the ROC was not immune under the FSIA for an assassination committed in California and that neither the discretionary function limitation nor the act of state doctrine required dismissal; it further held the ROC could face vicarious liability under California law based on the intelligence director’s use of official authority and resources to carry out the killing.


Liu v. Republic of China, 892 F.2d 1419 (9th Cir. 1989)