An appeal to a federal appeals court filed by the family of Naftali Frenkel, who was one of three Israeli teens kidnapped and murdered by Hamas terrorists in the summer of 2014 in the Gush Etzion area, has brought to light an extraordinarily benighted view of Israeli citizens held by a federal district court judge in Washington.

The Frenkels had filed a lawsuit against Iran and Syria for enabling the crimes and asked for $340 million in damages. Federal Judge Rosemary Mayers Collyer credited the Frenkels’ claims against the two countries, but awarded only $1 million for their son’s pain and suffering, $50 million in punitive damages, and $4.1 million for the family’s pain and suffering.

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Amazingly, the judge argued that the Frenkels had assumed the risk of deadly violence by living close to the Green Line and sending their son to school over it. Therefore, the judge reasoned, Naftali Frenkel had to be deemed partially responsible for his own death.

The judge also reasoned that he was targeted because he was an Israeli and Jewish, not because he was an American; this calculation was a significant factor in the damages awarded.

To be sure, the assumption of risk and contributory negligence are common issues in tort litigation – but they are hardly applicable when intentional murder is involved. And while there is some  basis for taking into account whether or not a victim is an American citizen, the motivation behind the murder of an American citizen should not be relevant.

Thankfully, the appeals court would have none of the district judge’s reasoning and sent the case back to her to increase the award. But in this climate, one never knows how this sort of thing might have caught on.

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