FBI Not Liable for Failure to Warn About Extremists

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By Lance J. Rogers

Feb. 24 — The FBI didn't have a duty to notify local law enforcement about an extremist group's planned home invasion that led to the killing of a young girl and her father, a divided U.S. Court of Appeals for the Ninth Circuit ruled Feb. 24.

Even though FBI guidelines call for the agency to share credible information of serious criminal activity not within its jurisdiction, the lawsuit here founders because individual field agents had discretion to make a judgment call about releasing the information based on its source, its credibility and whether immediate action was called for, the court said in an opinion by Judge Jay S. Bybee.

“Even if an agent receives information that is credible and suggests serious criminal activity, an agent may choose not to disclose information based on his consideration of the possible effects of disclosure, such as the effect of disclosure on an informant, other individuals, or an ongoing investigation.” Judge Jay S. Bybee

“Even if an agent receives information that is credible and suggests serious criminal activity, an agent may choose not to disclose information based on his consideration of the possible effects of disclosure, such as the effect of disclosure on an informant, other individuals, or an ongoing investigation,” the court said.

Raid by Border Control Activists

The ruling demonstrates how broadly courts interpret the exception in the Federal Tort Claims Act, which makes federal law enforcement officials immune from liability whenever they are performing a “discretionary function or duty.”

The sole survivor of the attack, Gina M. Gonzalez, sued the FBI, arguing that an informant told federal agents that members of the “Minutemen American Defense,” an armed activist group that opposes illegal immigration and patrols the U.S.-Mexico border, were planning to raid a house they believed was occupied by a drug smuggler and that he even gave the FBI a map.

The district court dismissed the claim and the Ninth Circuit affirmed, saying that the FBI guidelines for sharing information with local law enforcement weren't mandatory and that, regardless, the discretionary function exception to the FTCA gave the agents immunity because those guidelines say they have room to use their discretion when deciding whether information should be disclosed.

“As the Guidelines make evident, any agent choosing whether to disclose information must weigh the credibility and seriousness of the threatened criminal activity against the possible risks—to an informant, if disclosure might reveal his cooperation with the government; to an intended victim, if disclosure might put him in greater danger; to other potential victims, if disclosure might also endanger them; or to ongoing investigations, if disclosure might jeopardize their success,” it said.

Missing Map

The court accepted the government's argument that it didn't need to prove that the agents here actually exercised that discretion. All that matters, it said, is that they had the freedom to do so.

The discretionary function exception applies so long as the challenged decision is one to which a policy analysis could apply.

Judge John B. Owens joined the opinion, but Judge Marsha S. Berzon dissented, arguing that the guidelines were mandatory and that the government couldn't take advantage of the discretionary function exemption because there was no indication that the agents made any judgment call about alerting local authorities.

Indeed, she noted, the informant gave the FBI a map, drawn by the leader of the planned attack, showing the approximate location of the house to be invaded, but the FBI “misplaced” the map.

Haralson, Miller, Pitt, Feldman & McAnally PLC argued for Gonzalez. Steve Frank, of the Department of Justice, Washington, argued for the government.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com