Who Pays When The DEA Destroys Your Vehicle And Kills Your Employee During A Botched Sting? Hint: Not The DEA

from the law-enforcement:-still-hazardous-to-innocent-Americans dept

The DEA likes to borrow stuff. It’s just not very good about returning borrowed items in the same shape it got them.

Like a woman’s Facebook account.

Or a businessman’s semi truck.

And his employee’s life.

Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his “fleet.” One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought.

In reality, Chapa was working with the DEA, which had paid him to load up Patty’s truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That’s when everything went completely, horribly wrong.

[A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.

In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.

The truck’s driver was killed and four attackers were arrested and charged with capital murder.

Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA’s operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery.

Patty’s truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck’s use in a law enforcement operation.

Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant — something that makes Patty’s life a little bit more dangerous.

Nor will it have to. A federal judge has dismissed Patty’s lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.)

A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant.

The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because “clandestine.”

No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders…

In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted.

Patty responded that Villasana’s own testimony ran contrary to this declaration’s assertions.

Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].”

The judge points out that Villasana also testified that he was “not aware” of any policy instructing him to notify the vehicle’s owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion.

So, it would appear the government — especially law enforcement agencies — can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained.

This argument, perhaps the most solid of the multiple presented, dead ends thusly.

In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional.

In the end, it’s the crime-fighting ends that justify the means — even if the means include destroying half of a businessman’s fleet of vehicles and turning him into a potential drug cartel target.

Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals.

Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception.

Furthermore — quoting previous Eighth and Ninth Circuit Court decisions:

“…discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties.”

TL; DR, courtesy of Andy Vickers, Patty’s attorney:

A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes.

Query:   is our federal government liable to pay for the damages to you and your property?

Answer:   Nope.

Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it’s almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its “covert” use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be “neighborly” and show that we’re all Americans here and no one — not even the Drug Enforcement Agency — is “above’ making amends when things go horribly wrong.

Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn’t want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases.

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Comments on “Who Pays When The DEA Destroys Your Vehicle And Kills Your Employee During A Botched Sting? Hint: Not The DEA”

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123 Comments
Leagle Beagle says:

Re: Re:

It is a violation of the Fifth Amendment but the trucking-company owner’s incompetent lawyer filed the wrong sort of lawsuit. He filed in District Court under the Federal Tort Claims Act (plus a Bivens action) without, apparently, looking up the law or precedents which say FTCA doesn’t cover Federal cops and Bivens has been completely eviscerated. (Business owner) Patty should sue his lawyer for malpractice. The lawsuit should have been filed as a reverse condemnation action in the Court of Claims under the Tucker Act. The millions of dollars of damages sought for injury to Patty’s dignity would have been off the table, but the value of damages to and loss of use of the truck would likely have been recoverable, since the government did take actual physical possession of the truck to use it for government business.

Coyne Tibbets (profile) says:

Re: Re: Re:

I agree. The claim should have been filed against the assets of the drug lords.

No doubt, there has already been a “U.S. against A Bunch of Assets” case, and the assets are in the hands of the DEA, but I don’t see that as a problem. First his truck was damaged, then there was a forfeiture case; so his claim is antecedent to the forfeiture claim.

That is: I think he can make a case that he should have been recompensed out of the assets before the government forfeited the residue. As an non-ally party of the drug lords he is certainly entitled to that recompense, and his claim comes first.

Of course, that will have a negative effect on the DEA, since they won’t get to keep all those cool assets; they’ll have to fork some back to him. Does anyone outside of DEA have a problem with that?

Just Another Anonymous Troll says:

Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

When you factor in legal fees, loss of income from having half his fleet shot up, emotional distress for having his truck and employee shot up, compensation for his violated constitutional rights, and other things, $6.3 millions seems a bit more reasonable.

Anonymous Coward says:

Re: Re: Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

The DEA just asked him to do it.

I read the opinion carefully —twice— but perhaps I didn’t read it carefully enough.

In any case, please point to where the record shows that the DEA requested that the employee initiate his course of action? I’m distinguishing that from what I did find in the record: A statement that the employee notified the DEA of his proposed course of action, along with an implication that the DEA acquiesced to that plan.

Where’s the statement that it was the DEA who came up with the plan in the beginning?

Anonymous Coward says:

Re: Re: Re:2 Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

Page 2: “The DEA Task Force decided to conduct a controlled drug delivery using Patty’s driver and truck…”

The informant told the DEA that the cartel had asked him to deliver the drugs, and that he happened to have a truck that he could manipulate his boss into letting him use. It was the DEA who greenlighted the plan to actually use the truck to make the delivery.

Jack says:

Re: Re: Re:2 Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

Yeah, some random trucker came up to the DEA and said “Hey, I have this awesome idea for how you can bait out some Los Zetas!” and they thought “Great! Truckers are totally qualified to plan covert operations to combat organized violent crime!” – the DEA always relies on random CI’s to plan out their covert operations… You are totally right!

The DEA along with the task force involved planned the operation – suggesting otherwise is stupid – really, really freaking stupid…

Anonymous Coward says:

Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

What’s good for the goose…

Considering that when a person is typically arrested by the DEA and refuses to take a plea deal, they apply each and every single charge they can come up with (regardless as to whether or not they’ll stick).

Why should his treatment of them be any different?

Anonymous Coward says:

Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

Considering the phrase “not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission” was quoted in the article, I’d say your presumption that it wasn’t an 18 wheeler is wrong. How about actually reading the article before responding next time?

Anonymous Coward says:

Re: Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

It’s a waste of time to ask the troll to read the article first. It flies off the handle at titles and doesn’t have time to actually find out what the article covers. You are not the first to mention this nor will you be the last.

Anonymous Coward says:

Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

“Wants 6.3 million OVER damages, eh? That’s by far the most relevant fact.

Have to be 18-wheeler to even be $100K damages. $500 worth of Bondo and paint on 10-year old truck is probably closer to truth.”

Ya you have no idea how much 18 wheelers are worth, a new truck can set you back 200k-500k, you want your own trailers new can cost upwards of 100k. Your truck may only be worth $500 cause it is covered in bondo, get a grip, what he is asking for is very resonable, unreasonable would have been to sue for 20 million. Get your head out of your ass idiot.

Adam V says:

Re: Better headline: Trucking company attempts $6.3M cash grab from taxpayers.

Actually, as a taxpayer, I would love the DEA to have to pay out. Because then my congressman could haul the DEA in front of Congress and say “why the hell would you ever get into this sort of situation?” and curtail their powers. Win/win/short term loss/win.

Zonker says:

Re: Re:

And thus, any law the DEA relies upon to justify their operations in violation of the Bill of Rights is unconstitutional and by definition null and void.

If only our judicial system were to actually read and apply the law in proper order from top (US Constitution) to bottom (Federal, then State, then local law) rather than from bottom to top as they do now.

Anonymous Coward says:

Re: Re:

The story I read suggested that the driver was killed in the cab, with the entire cab shot up.

Is there any assertion that the shots directed at the cab were fired by federal agents?

Or were those shots all fired by other persons, who were not affiliated with the government, and who were committing a crime by those acts?

Anonymous Coward says:

Re: Re: Re: Re:

The DEA stole the truck…

You’re using “stole” colloquially?

Or are you making a specific allegation that the DEA, as an agency, committed larceny? More broadly, do you allege that the DEA, as an agency, committed a specific crime? And can you establish all of the elements of that alleged crime?

JP Jones (profile) says:

Re: Re: Re:2 Re:

“No person shall be…deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The owner’s private property was taken for public use, without just (or any) compensation. Obviously the lawyers will use some exception to the exception to the law on raising gophers to prove that this somehow doesn’t directly violate the U.S. constitution, but hey, I’m just reading exactly what it says.

1. In that the truck was the owner’s private property.

2. In that the owner’s private property was taken for public use in law enforcement.

3. In that no compensation was given.

You can argue until you’re blue in the face that it was the employee who used the vehicle improperly, that the ones causing damage were not government employees, and that the DEA didn’t force anyone to do anything. This was a sting operation, and it wasn’t planned by the dead employee. The DEA knowingly set it up and knew that the employee was using the truck.

There can be no doubt that the government took an individual’s private property for their use, and that they were expecting conflict involving the vehicle (otherwise what was the point of having all the armed officers around?). The reason this is news is because, once again, we have something that is legal but is also wrong.

Maybe the reason we have over 2.4 million people in jail, almost half of which are there for stupid drug charges, is because our country has forgotten the difference between the something that is illegal and something that is unethical.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“Or are you making a specific allegation that the DEA, as an agency, committed larceny?”

Yes, I am making this specific allegation. The DEA did not own the truck. They DEA did not have the owner’s permission to use the truck. If anyone else who was not the DEA did the same thing, they would be hauled up on charges of grand theft.

The DEA, as an agency, committed felony larceny.

Anonymous Coward says:

Re: Re: Re:5 Re:

I am having a hard time knowing where Texas law is relevant.

There’s no general federal common law.

Now, if you want to make the argument that the Texas law against unauthorized use of a vehicle is in conflict with some federal statute, or that the DEA in Texas is not at all bound by that state’s laws, then then might get to be a complicated and interesting argument.

Original principles of federalism, though, would largely indicate to me —in the absence of some over-riding Congressional scheme— that the United States expects DEA agents to obey the criminal laws of the state where they operate.

James Burkhardt (profile) says:

Re: Re: Re:5 Re:

Actually, the AC has a point, though hes bad at explaining it. The AC is attempting to determine under what law the ‘theft’ claim is being determined so he can challenge it. There is no federal GTA statue, so it devolves to state claims. (He is wrong that there is no federal common law, just that there is no federal common law on the issue of theft). His point is that there is no theft law that covers the crime that happened. And he is right. The crime would be the one I have listed in several comment threads, that being “Unauthorized use of a vehicle”, alternatively referred to as “Taking without Consent” and “Joyriding”

John Fenderson (profile) says:

Re: Re: Re:6 Re:

I am not a lawyer, and this is clearly an areas where the law falls down completely, so I couldn’t care less about what the laws on the books say.

I’m just saying that this is clearly theft by the DEA based on the fact that if I did the exact same thing the DEA did, I would certainly have been brought up on charges of grand theft at the very least.

Anonymous Coward says:

Re: Re: Re: Re:

… everything that happened to it and its occupants is their responsibility.

As a general matter of law, a party who is not themselves acting criminally is not responsible for the criminal acts of another.

An ancient principle holds that it’s legally unreasonable for someone to commit a crime, and therefore it’s legally unforseeable that a crime will be committed. That common principle does not hold today in all jurisdictions, but I myself tend to think it legally proper.

James Burkhardt (profile) says:

Re: Re: Re:2 Re:

They had knowledge that the CI is not the owner, but a leasee, and that the lease was restrictive enough the the CI had to lie to use the truck to pick up the drugs. This lie prevents proper consent and therefore the crime of Taking Without Consent occurs. They now have knowledge of a crime outside the drug trafficking charges they would immunize the CI against. As they based an operation around this crime, this taking would likely be immunized as well, making the DEA a co-conspirator in the premeditated crime, and given that they paid (or would have paid) him to commit this crime, they now have agency in the crime. That makes them just as liable even if the conspiracy and/or accessory basis fail.

Anonymous Coward says:

Re: Re: Re:3 Re:

… the crime of Taking Without Consent occurs… and given that they paid (or would have paid) him to commit this crime, they now have agency…

Rephrasing your words: You allege that the inted to DEA pay the owner’s employee for a larceny of the employer’s truck? Because I don’t think there’s actually any allegation that the owner’s employee did not intend to return the truck to the owner.

Or do you instead allege that the DEA intended to pay the owner’s employee for conversion of the property to their own uses?

James Burkhardt (profile) says:

Re: Re: Re:4 Re:

Ah, you see, that’s where you are proving your ignorance of the law. I am not accusing the employee of the crime of Larceny. Intent to return the vehicle prevents that crime. I am accusing the employee of what is more commonly known as ‘Joy riding’. The legal term is Taking without Consent, and was made illegal specifically because temporary theft is not theft, and it was decided that with vehicles even the temporary appropriation of them is not considered ok. In Texas it is codified under Tex. Penal Code Ann. § 31.07.

Anonymous Coward says:

Re: Re: Re:5 Re:

In Texas it is codified under Tex. Penal Code Ann. § 31.07

CHAPTER 31. THEFT

Sec. 31.01. DEFINITIONS. In this chapter:  . . .

(3) “Effective consent” includes consent by a person legally authorized to act for the owner. Consent is not effective if:

(A) induced by deception or coercion;
 . . .

Sec. 31.07. UNAUTHORIZED USE OF A VEHICLE.

(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.

(b) An offense under this section is a state jail felony.

But the person whom we have been referring to as the “employee”, and who actually appears from the record to be a lessee, did in fact have consent to operate the vehicle.

There’s no allegation that the truck’s owner was coerced to grant the lease.

James Burkhardt (profile) says:

Re: Re: Re:6 Re:

You quoted the relevent section for my rebuttal, so thank you for that.

“Consent is not effective if: (A) induced by deception or coercion”

Reading the history, it sounded to me like he CI got a job as a truck driver to move drugs. His intent and purposes in getting the job were hidden from the owner, who would have been unlikely to grant the lease to a CI who intended to move drugs in it.

But that’s a bold assertion without evidence. So lets assume that both the drug running and CI status came after he got the job.

Now lets look at what the CI did in the runup to the shootout:

Upon being contracted to move the drugs to Houston, he informed the DEA that he would lie to the owner to get approval to travel to Houston. If, as you suggest, as a lessee he had the right to travel as he wished, why did the CI: A) inform the owner that he was going to Houston, B) Justify to the owner why he was going to Houston, C) Inform the DEA that he needed to inform the owner, and D) Inform the DEA of the justification he was using with the Owner?

His justification to both his handler and the owner suggest he needed the owner’s consent to take the truck to Houston, and he failed to disclose his true intents to get that consent. Had he put it more simply, the argument could be made that he was only informing the owner of where he would be, but the part about getting the truck serviced was a strange detail to include (unless he needed to justify taking the truck), and it would still beg the question why he needed to do inform the owner of his whereabouts at all, if the owner had no say in the use of the truck.

Anonymous Coward says:

Re: Re: Re:7 Re:

So lets assume that both the drug running and CI status came after he got the job.

We’re not in the 7th Circuit here.

You’re admitting consent, and not alleging revocation. Instead, you’re saying, at best, that the use was outside the scope of a limited license granted by the lease. I think we need to see the lease terms before jumping to that conclusion.

James Burkhardt (profile) says:

Re: Re: Re:8 Re:

First off, I think you are trying to make a sly reference to a 7th circuit decision about consent? Maybe that the fifth circuit rejected? In any case, I miss the reference, so please enlighten me.

I did not admit consent in the statement you posted. I used a common logic tactic in which, after arguing a position, I posit a scenario in which my position becomes compromised and I am forced to argue argument still stands. I remain unconvinced that the CI had a career as a trucker, and then either A) got randomly hired by the DEA to traffic drugs and agreed or B) got into drug smuggling and then got turned into a CI.

I would argue we need to see the lease terms before jumping to the conclusion that the CI just really liked telling the owner that he where he was going. The conclusion that the CI did not need approval to go to Houston has some facts running against it, and so your general conclusion should not be jumped to either.

If the DEA hired the CI without him previously having any drug contacts, and the CI did not tell the owner that he was performing outside contracts, he may very well have been in violation of his lease (this theory is supported by the subterfuge inherent in his justifications to the owner). There are also questions of whether the drug running violated a prohibition on illegal activity common to leases in general. And then if he was a drug runner first, you have questions about the hiding of the arrest that lead to him becoming a CI was disclosed to the owner.

In general, no matter if it was a violation of his lease, let me bring up one of the definitions of deception in the cited law:

(C) preventing another from acquiring information likely to affect his judgment in the transaction;

I would argue that withholding the information that he was working for the DEA prevented the owner from revoking consent. As well, withholding the information that he was running drugs.

Again I ask you, why justify the trip to Houston if not to conceal his intent and prevent the withdrawal of consent?

Anonymous Coward says:

Re: Re: Re:9 Re:

In any case, I miss the reference, so please enlighten me.

In the CFAA context, there’s a current circuit split on when violating terms of service becomes criminal hacking. The 7th Circuit reference was specifically about the heavily-criticized decision in Citrin (“ . . . his [Citrin’s] authorization to access the laptop terminated when. . . ”). The dispute in that context centers on the meaning of “without authorization” and “exceeds authorized access”, rather than on the precise word “consent.”

But regardless of the specific words used, it essentially boils down to the same dispute.

The employer grants permission to use some equipment, and then finds that the employee has used the equipment in a way that the employer had not anticipated. Is that a crime? The Techdirt consensus generally runs the other way.

It was a somewhat off-hand comment.

Anonymous Coward says:

Re: Re: Re:9 Re:

I would argue that withholding the information that he was working for the DEA prevented the owner from revoking consent.

After browsing some of the cases, it appears to me that the “arising out of … misrepresentation [or] deceit” exception has been interpreted broadly enough to cover that.

28 U.S.C. § 2680

The provisions of this chapter and section 1346 (b) of this title shall not apply to—
 . . .
(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . .

The exception is not limited merely to causes of action which are styled as misrepresention or deceit. “Arising out of” looks to the underlying facts.

James Burkhardt (profile) says:

Re: Re: Re:10 Re:

Huh.

You have me there sir. In fact this statute would appear to immunize both in the case that the lease was acquired by deception and in the case where he violated the lease. While it wouldn’t immunize them from criminal fines and sanctions related to the crime, it does immunize them from agency in regards to the civil claims of destruction of property.

The DEA still committed a crime. However there is no legal remedy for the torts committed in association with that crime.

However, this does give rise to the constitutional question of the purpose of the just compensation clause of the 5th amendment, and is one that likely has to be addressed by congress or the supreme court given fluctuating cout decisions at both the state and federal level. As discussed in this paper: http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1382&context=wmborj the clear intent of the just compensation clause is to prevent a party from having to bear the cost of damages and actions from which the community as a whole benefits. Exempting themselves from cases where they lied to people to get consent and deprive them of their property undermines that purpose. But the courts have for some reason determined otherwise.

That said, you win. I can find no way around the combination of 28 U.S.C. § 2680 and relevant case law on the fifth amendment. Nice debating with you.

As an aside: I am unsure why they had to completely eliminate the rules of tort claims procedure and venue establishment in granting immunity to certain types of claims, but it appears nuking the rules from orbit was the approach taken.

John Fenderson (profile) says:

Re: Re: Re:2 Re:

“An ancient principle holds that it’s legally unreasonable for someone to commit a crime, and therefore it’s legally unforseeable that a crime will be committed.”

But the DEA did commit a crime: they stole a truck, then knowingly used that truck in a manner that a reasonable person could easily see is very risky. Last I checked, when us plebes commit a felony and unplanned bad things happen as a result of it, we are responsible for the unplanned bad things as well.

Anonymous Coward says:

Re: Re: Re:3 Re:

… the DEA did commit a crime: they stole a truck…

I ask again, are you using “stole” in a merely colloquial sense?

Or do you have a particular allegation, for instance under the Texas definition of theft? Or under some other state’s definition perhaps?

James Burkhardt (profile) says:

Re: Re: Re:5 Re:

Unauthorized use of a vehicle, Tex. Penal Code Ann. § 31.07, states that it is a felony for the CI to have used the vehicle as described. As the DEA paid him for performing such actions as a CI, they have agency over the crime and are culpable. Perhaps not Felony THEFT, but closely related (though I do wish people would distinguish between GTA and Joyriding, which are distinct crimes)

James Burkhardt (profile) says:

Re: Re: Re:

DB’s comment was not explicitly stating anything about who should be getting billed, but responding to questions about the AMOUNT of the suit. His comments are entirely accurate and have nothing to do with who is responsible for the damages.

Given your comments other places, I would think you would be more appreciative of the purpose and intent of language.

Triptofiller (profile) says:

Re: Re: Re:2 Re:

Who gives a shit? State sanctioned thuggery is the law of the land these days so what’s a little stray lead? Nothing. Ever.

When the law is shaped just so and manipulated in just such a way the results, the carnage, the incarceration – insane.

No culpability because covert? Thank you rule of law shaped to protect government agents, employees and affiliates – all others’ well-being be damned.

Larceny, Lies & Murder – When you’re in charge you shape the charges, scenes, evidence and the oft resulting trail of tears.

Law, in and of itself, is going rogue shaped by rogues and carried out by negligent, narcissistic purveyors of fascism and tyranny – all in the name of the greater good. Fuck the dea, fbi, cia and harvard law until someone, somewhere can step the fuck up and be accountable for the absolute bullshit excuse that has become distinctly American jurisprudence.

This guy had his life forced into a precarious position by the actions of the state. Anything that spins that into “no obligation” is a fucking joke worthy of contempt.

MarcAnthony (profile) says:

Grand theft auto

No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed.” …

“In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did…”

Taking someone’s vehicle without their permission is grand theft, and there is a statute for that. The different course of conduct that is prescribed is that all government agents should be acting ethically and legally, from the get-go. If the DEA can commandeer your property at their “discretion,” that flies in the face of the concepts of property ownership and of citizens even having rights.

Anonymous Coward says:

Overall, I’m not sure this was a “taking” by the government in the 5th Amendment sense.

The owner did not expect to have the use of the vehicle during the time it was being used for the drug running – he had given the OK for the employee to use it. (Just not in this manner.) The vehicle was impounded, but impounding of a vehicle is not a “taking” when that vehicle has been involved in a multiple-death shooting and is evidence, and they returned it before the end of the month.

They used it, they damaged it, but they didn’t really “take” it.

Jack says:

Re: Re:

He DID expect to have use of the vehicle at the time – namely to have repairs done on it. Even if this all went according to plan, they still would have prevented the next trip the truck was schedule to go on since instead of being repaired, it was being driven to Mexico to pick up a load of drugs. There is no way this can be construed to not be a taking.

The lawyers fucked up here by dropping the 1983 suit and pressing the 5A issue.

tqk (profile) says:

Re: Re:

There’s another one. You can’t even protect yourself from this happening. It’s a clandestine op so asking your prospective employee before hand whether he’s a CI isn’t going to elicit the truth. He can’t tell you. Because drugs.

All hail our noble Drug War warriors. Your tax dollars at work, and way more of them than either you or the IRS thought were involved. Everybody makes mistakes, but to really screw up takes govt.

sigalrm (profile) says:

Re: What about the driver "agreed"?

Coercion works wonderfully well for the cartels the DEA is fighting – why would you expect the DEA to deprive itself of such an effective tool?

At the end of the day, I think Nietzsche has it covered quite succinctly: “He who fights with monsters might take care lest he thereby become a monster. And if you gaze for long into an abyss, the abyss gazes also into you.”

When the tactics of the “good guys” start to be indistinguishable from those of the “bad guys”, it’s time to take a step back and re-evaluate the situation. Because lets face it – the DEA’s actions here – aside from the court fight – are identical to some of the tactics cartels use.

Anonymous Coward says:

Two things

First, in my opinion they have to pay. They took the truck without the owners permission. Sure they are a gov agency and don’t go to prison like normal people but at least some compensation i.e. repair cost.

Second, did they really “hire” a civilian to drive a truck into a Los Zetas trade then bust it and thought the driver would survive? From some documentaries I have seen, those guys aren’t your friendly neighbourhood thieves.
Think about it… You are heavily armed, trading a real truckload of weed, the driver is someone you don’t know, DEA shows up. Now multi choice question, who do you shoot first?
A. The driver
B. The guy sitting on the left side of the truck
C. The only person you don’t know at the scene

In my opinion there is no way the guy could have made it out alive. Meaning the “things went horribly wrong” part should have been the expected outcome.

James Burkhardt (profile) says:

Re: Two things

Unfourtunately, I have, after a long debate, been shown that even after establishing a crime for which the DEA is culpable, they are immune to the civil claims under 28 U.S.C. § 2680, because the crime arose out of deception, for which they are categorically immune.

The case law on the fifth amendment plays this out, and really needs to be addressed by congress or the supreme court.

Anonymous Coward says:

Re: Re: Two things

“Unfourtunately, I have, after a long debate, been shown that even after establishing a crime for which the DEA is culpable, they are immune to the civil claims under 28 U.S.C. § 2680, because the crime arose out of deception, for which they are categorically immune.”

Granted I’m not a lawyer and not even a US citizen so basicly I don’t have an understanding of this law. That said I couldn’t find anything in the paragraph (tried to follow links to other sections but got lost, darn you law language) that would apply in that case.
Just for personal understanding, which sub-paragraph (if thats the word: a-n ) does or should apply in this case?

Anonymous Coward says:

Re: Re: Re: Two things

… basicly I don’t have an understanding of this law…

Prior to the enactment of the Federal Tort Claims Act (FTCA), the Congress spent quite a bit of time on private bills for the compensation of various persons damaged by the United States.

The FTCA was enacted in order to routinize some —but not all— of that work. Rather than having a private bill enacted by Congress for every singular set of circumstances, now, instead, Congress has partially waived sovereign immunity and the federal courts handle some tort claims against the United States. Congress, though, may still enact private legislation, and must still do so in order to grant relief in the classes of cases which fall under under the exceptions scattered throughout the FTCA.

Anyhow, the exception for cases “arising out of … misrepresentation [or] deceit” is paragraph (h).

See the earlier discussion above.

Anonymous Coward says:

All of this would be bad enough if the DEA wasn’t the single largest drug supplier in the United States.

Actively supported by the US government, and in a war with various ‘organized crime’ groups, the DEA has known to accidentally ‘lose’ hundreds of TONS of heroin, cocaine and Marijuana from evidence storage, and to have several billion dollars in unexplained funding that isn’t covered by any government system.

Uriel-238 (profile) says:

Once again the two-teired caste system reveals itself.

I can’t imagine a civilian who hired Chapa to borrow the truck to make a delivery (that ultimately turned out badly) would be let off so scott free.

Anyone in the DoJ who breaks the law simply walks and is untouchable.

(I’d qualify that by saying officers have to be acting in pursuit of enforcing the law, but I bet they mix their drinks in pursuit of enforcing the law)

tqk (profile) says:

Re: Once again the two-teired caste system reveals itself.

I can’t imagine a civilian who hired Chapa to borrow the truck to make a delivery (that ultimately turned out badly) would be let off so scott free.

It’s the worst sort of hypocrisy. Whatever supposed evils there are in illicit drugs, they don’t come anywhere near crapfests like the Drug War. Vast sums of taxpayers’ money spent on filling prisons, ruining lives, militarizing police and undermining the justice system, perpetuating institutionalized racism, corrupting police, prosecutors, judges, and politicians, all in countless pointless efforts to save society from consensual acts!

We already went through this with Prohibition, yet we’re doing it again. That time, we made the Mafia rich. This time, we’re making the Zetas rich, and exporting this insanity to countries on other continents. Stupid, stupid, stupid!

Anonymous Coward says:

Re: Re: Once again the two-teired caste system reveals itself.

“We already went through this with Prohibition, yet we’re doing it again. That time, we made the Mafia rich. This time, we’re making the Zetas rich, and exporting this insanity to countries on other continents. Stupid, stupid, stupid!

This time we’re also making the so-called “criminal justice system” rich. That way it will never allowed to end. Smart, smart, smart! (for them, that is)

JayGoldenBeach says:

Thank the authoritarian-submissives

We Americans frequently yap about “liberty”, “freedom”, etc., yet we repeatedly elect lawmakers who bend us over to be fisted by Big Business. When not knee-bound for the corporate tyrants, the authoritarian-submissive Americans are busy deifying armed law enforcers. Too many Americans are brain damaged from decades of living in the Edw. Bernays haze to see that we live in a system of Corporate Tyranny and presumably condone our law enforcers use of extrajudicial ultraviolence. J. Edna Hoover taught us not to expect honesty or honourable intentions from our lawenforcers, yet many Americans cling to the child-like trust that leads to acquiescence.

Uriel-238 (profile) says:

Re: Um, EVERYONE is authoritarian-submissive. It's not just the Americans.

It’s what keeps traffic running (fairly) smoothly and the trains running on time, even (in the worst case) the trains to Auschwitz.

We have strong instincts to obey magistrates and official laws (especially if posted), and this helps keep the system from breaking down. Amusingly, we see this in opinions from the United States Conference of Catholic Bishops who are happy to say This is the way things are, so there without any explanation as to why or the rationale by which it achieved its conclusion.

It also means we tend to trust that those in authority are there because they have the expertise and wisdom to do so and not because they bought their way there, or were friends of the president.

Granted, it may be a tad worse in the US than other places that might teach their kids critical thinking skills at an early age. We’ve seen in plenty of platforms (yes, I’m looking at you, Texas GOP) the preclusion of Critical Thinking in K-12 syllabuses because critical thought leads to questioning authority which leads to mischief. Maybe they expect children to naturally develop proactive self-interest on their eighteenth birthday.

But in the meantime, no, there are people who just positively hate change and love the status quo and are eager to follow all laws no matter how stupid or silly they are. And yet they still know to drive flow-of-traffic (and not 55mph) in the fast lane.

I’ve said this before. People are people. You can’t blame them for behaving incorrectly, for values voting candidates against their best interests, for not working hard enough, for demanding too much (or too little pay) to govern the people you got, not the people you wish you had.

Iran-Contra Redux says:

DEA got caught green handed?

None of the occupy or hippie crowd picked up on the obvious fact that the feds got caught running dope to international drug cartels just like they got caught running guns. How loud the same crowd cried when it was a Republican actor in the White house accused of drug & gun running, but how silent you have been during the last 2 Dems who did the same.

htom (profile) says:

The driver, conspiring with the DEA, took the truck for use in an illegal deed (transporting illegal drugs.) Grand theft is a felony. A human death in the commission of a felony is a felony murder.

What does civil immunity have to do with a felony conspiracy that has as a consequence a felony murder? This is criminal act pretending to be “civil”.

Anonymous Coward says:

Re: Re: Re:

… so the owner’s still screwed.

No. The owner is not screwed until the howling mob here erases elements of criminal intent from the law, and extends vicarious liability to the point where… the truck owner is charged with felony murder in the death of his employee.

Then the owner is screwed.

The owner hired the employee to drive the truck. The owner’s truck was transporting a load of drugs. The employee is now dead at the hands of another. Erase intent. Make employers strictly liable for all acts of employees.

PaperTiger says:

Constitutional Law

NO. That’s WRONG. Read the 5th Amendment again:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Does the owner have the ability to use his property, or is he now deprived of a truck in working condition?

I’d say that the deprivation of that property is a direct result of the governmental actions, wouldn’t you?

That’s just the plain law. If the government doesn’t like it and wants to carve out a “cowboy secret ops” exception, they are welcome to (try to) change the law, but no, you have to pay for the truck. The employee and the reputation, no. Truck, yes.

Craig Patty says:

Get the facts straight

Guys….Lawrence Chapa did not have a lease on my truck. Lawrence Chapa was a contract driver for me.
He was just a driver. He had no lease on the truck. Yes, the DEA knew it was not his truck and that he had lied to me to be able and get the truck from where it was supposed to be….North Texas….to south Texas….to do the controlled sting that resulted in his death when he returned to Houston

Craig Patty

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