Trigger Warning: If you thought the law “a ass” before, you’re going to really hate it now. Pretty much everyone who learns of what the DEA did to Craig Patty thinks so, other than Southern District of Texas Judge Lee Rosenthal, who held that it was cool with her.
The back story is ugly, and undisputed.
From the Houston Chron
“Your driver was shot in your truck,” said the caller, a business colleague. “Your truck was loaded with marijuana. He was shot eight times while sitting in the cab. Do you know anything about your driver hauling marijuana?”
“What did you say?” Patty recalled asking. “Could you please repeat that?”
Patty thought his truck was in the shop. It wasn’t.
Commandeered by one of his drivers, who was secretly working with federal agents, the truck had been hauling marijuana from the border as part of an undercover operation. And without Patty’s knowledge, the Drug Enforcement Administration was paying his driver, Lawrence Chapa, to use the truck to bust traffickers.
At least 17 hours before that early morning phone call, Chapa was shot dead in front of more than a dozen law enforcement officers – all of them taken by surprise by hijackers trying to steal the red Kenworth T600 truck and its load of pot.
In the process of shooting up Chapa, the hijackers shot up Craig’s truck. Now, it finally went to the shop. Patty’s insurance wouldn’t pay for the repairs because they exclude coverage of things like getting shot up while being used in covert sting operations by the government. It was a small trucking business, two trucks in total, and half of his business died in the hail of bullets. So Craig Patty was screwed on both ends, his business being half unable to operate and his truck being in need of costly repair.
So Patty did what any true
American Texan would do, and sued the United States. There is a laundry list of really excellent reasons why the government can’t seize a guy’s property, run with it, break it (while killing his employee), then say, “tough nuggies, pal.” None of them mattered because of sovereign immunity.
Essentially, you cant sue the king, except to the extent the king allows himself to be sued. There are two basic avenues for doing so, the first being 42 U.S.C. § 1983 (together with a Bivens action, which is akin to a § 1983 suit), which allows suit for a violation of civil rights, and the other being the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.
The FTCA gives people the right to sue the government for limited causes of action, including “claims for ‘assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution’ caused by the ‘acts or omissions of investigative or law enforcement officers of the United States Government.'” But what about all the other things the government can do to a person that deserves recompense? Sorry. You get what they let you have. That’s why it’s good to be the king.
For reasons unknown, Patty voluntarily dismissed his Bivens and § 1983 claims, which would have covered constitutional violations. No doubt there was a good reason for the decision, but whatever it is, I neither know nor understand. So he was left with the FTCA claims, which sounded in negligence and conversion.
Judge Rosenthal held that these claims were subject to the discretionary function exception:
“[T]he purpose of the exception is to ‘prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.’”
Already, an unpleasant odor permeates the decision. Nothing about what the DEA did with Craig Patty involves judicial “second-guessing,” but compensating a person for what the government lawlessly stole from him. It’s not the decision, but the consequence that’s at issue.
“Whether the discretionary exception applies involves a two-part inquiry.” Courts first ask whether the challenged conduct involves an element of judgment or choice. If “a ‘federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow,’” then the exception does not apply “because ‘the employee has no rightful option but to adhere to the directive.’”
And indeed, there is law, beginning with the Fourth Amendment prohibiting the government’s seizure at will of property belonging to others. Yet, it failed to hit the court’s radar.
“[E]ven ‘assuming the challenged conduct involves an element of judgment,’” courts must then consider “‘whether that judgment is of the kind that the discretionary function exception was designed to shield.’” “[T]he challenged conduct must involve ‘governmental actions and decisions based on considerations of public policy.’”
Judge Rosenthal looked to the “public policy” of the Drug War, and held that the Controlled Substance Act authorized the DEA to do anything it pleased, any way it pleased.
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.”
All true, and none relevant. The question isn’t whether the DEA can mount drug war operations, or whether undercover operations, even when so badly botched that they get their snitch killed, involve discretion, but whether they get to steal a guy’s truck in the process. Contrary to popular DEA belief, there is no Federal Steal People’s Property Whenever You Feel Like It Act. If there was, they would have a better name so it could be reduced to a cool acronym like the SAVE YOUR CHILDREN FROM DEATH Act.
Nonetheless, the court discerned nothing to suggest that the DEA didn’t get to steal Patty’s truck.
The record evidence is clear that no formal policy, regulation, or statute required Villasana and the other Task Force members to secure Patty’s consent before using his vehicle for the covert controlled drug delivery. The conduct Patty challenges was “a ‘matter of choice for the acting employee[s].’”
But what about the Constitution, you ask?
Gaubert, for example, held that the discretionary function exception bars federal jurisdiction unless “a federal statute, regulation, or policy specifically prescribe[d] a [federal officer’s] course of action.” 499 U.S. at 322-23. The Constitution is conspicuously absent from this list.
It’s good to be the king. Or the DEA in Judge Rosenthal’s courtroom. On the other hand, it sucks to be Craig Patty, or an
American Texan trying to enjoy life, liberty and the pursuit of a trucking business to achieve the American dream.