When The DEA “Exercises Discretion” With Someone Else’s Truck

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.

 

 

14 thoughts on “When The DEA “Exercises Discretion” With Someone Else’s Truck

  1. Richard G. Kopf

    SHG,

    With great respect for Judge Rosenthal, there has got to be a back story to this. Even I would have told the DEA to STFU and pay the guy. And, as you know, I just love the DEA–that merry band of comedians.

    All the best.

    RGK

    1. SHG Post author

      I don’t know, Judge. This operation was a botch of monumental proportions, and there may be more dead bodies buried under this fiasco that the DEA doesn’t want discovered. I would have expected the DEA to pay up quickly and happily, to make this go away, but obviously that wasn’t the plan. But then, they are, if nothing else, “that merry band of comedians,” though I suspect that dead CI doesn’t find them too funny.

  2. Reed Hollander

    It’s possible that the payment by the DEA to the driver to “commandeer” the truck could constitute a taking by the government under the Takings Clause of the Fifth Amendment, triggering an obligation to pay “just compensation”. Perhaps a takings claim should/could have been raised here in lieu of the FTCA. Giving Judge Rosenthal the benefit of the doubt, this may be a situation where the plaintiff just failed to assert the correct claim, rather than a situation where the judge was convinced that no viable claim existed.

    All that aside, this result indisputably sucks.

    1. SHG Post author

      I believe that a takings claim would fall under the dismissed 1983 claims, which I can’t quite comprehend. It seems obvious, but then, I don’t do 1983 actions so there may be reasons that I’m missing.

      1. Steven M Warshawsky

        It sure seems there should be a remedy here. It is not Section 1983, however, which does not authorize a cause of action against the federal government. The FTCA and Bivens are the standard remedies against the Feds.

  3. Kyle W

    Grrrrrrr

    Why didn’t you put a trigger warning on this? Now I’m all riled up because the government sucks.

    Oh wait, nvm

  4. lawrence kaplan

    SHG: In the second sentence you wrote “Perry.”

    Unlike Judge Kopf, I do not find the DEA funny at all. And, unlike him, I have no respect for Judge Rosenthal..

      1. John Barleycorn

        Speaking of the DEA and judges getting silly when the silly gets serious…

        One thing is known for sure, the Robed Rider from Nebraska is certain the DEA can’t do a darn thing about the “stoners” from Colorado forcing the cartels to sell all that cheap dope, of the heroin variety, to infants.

        Because apparently all that “legal” green dope they are ingesting in Colorado isn’t supremacy clause approved yet. So, all the heroin the cartel is subsiding doesn’t have a damn thing to do with synthetic methylmorphinans (the profits of which are FDA approved and FDIC insured) sneaking to the top of the most wanted list of the DEA.

        And everyone knows the DEA can only focus on the task at hand as is readily apparent with this post. When they loose focus unintended shit happens including dead people and a whole shit ton of unintended consequences.

        But fuck um! Because as Judge Rosenthal rightly points out-when looking at the DEAs policy and the Supremacy Clause approved laws of the land- who gives a shit about innocent families and business getting thrown under the bus. Them DEA guys gots-a- j_O_b-to-do to keep all the childreeeeeeen-s safe.

        Anyway, I don’t think it would be to literal an assumption to take the judge at his word with his due respect for Judge Rosenthal. Because he is right about the back story…

        Which is the $1.3 million in damages, on top of the 133K in lost earnings and bondo for the bullet hole repairs, the innocent Mr. Patty is seeking for himself and his family, “…who fear retaliation by a drug cartel over the bungled narcotics sting.”.

        But ain’t that just another sad story, amongst tens of thousands, of life under the DEA’s bus.

        Hell, I would even venture to wager another part of the back story is Mr. Patty telling the DEA to go fuck themselves when they were trying to explain the fringe benefits of their confidential informant program. And even though he had done nothing wrong unlike most of their confidential informants (who are threatened with life plus 20 for getting busted for a joint in an illegal roadside search-is that really an exaggeration?-) there are also fringe benefits other than “freedom”, like getting paid in cash and having your identity be cloaked as a number in hundreds of bogus warrants for judges to sign in order to keep the bus rolling.

        I don’t know but when and if Mr. Patty ever gets made whole again further on down the “ride” he should seriously consider investing the proceeds in pharmaceutical mutual funds to hedge against reality and insist that as part of the settlement the DEA officers involved in his “ride” will forevermore be forced to show up in court, whether testifying or getting warrants signed, to dress up as clowns instead of in suit and tie while presenting their best comedic stand up routines.

        It might take a few thousand weeks but nothing happens overnight unless you are the DEA needing to justify the budget at the end of the quarter.

        https://m.youtube.com/watch?v=4HmJX11_AQE

  5. Bartleby the Scrivener

    This reminds me of the Ferrari F50 that was wrecked by an FBI agent while it was impounded by the FBI (and they cracked the frame, so it was a total loss…I bet the adjuster had a conniption). Apparently they were very reluctant to release any information whatsoever on why the vehicle was being driven at the time of the accident or what happened during the accident, and the case was ultimately dismissed. The only information I ever saw for why the vehicle was in use was, “…in an email that was released to the insurance company, Assistant U.S. Attorney J. Hamilton Thompson said he was invited for a “short ride” before the Ferrari was to be moved from an impound garage.”

    While I have to assume the ruling was in accordance with the law, I cannot say it is good or right for our government to behave this way.

      1. Bartleby the Scrivener

        That’s the one! I wasn’t reading this delightful blog when you posted that.

        …and you provided more detail than I’d previously had and managed to make it worse. I’d previously been able to force myself to think it was at least _possible_ they weren’t just taking it out for a spin.

        I can’t do that anymore.

        The stupidity in the second one is…I don’t know what it is.

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