There is a troubling case out of Houston that shows the continuing immunity of the government from even lethal acts of negligence. In Patty v. United States, 2015 U.S. Dist. LEXIS 54871A, Plaintiff Steven Craig Patty sought damages in a bizarre case where the DEA paid one of his drivers, without his knowledge, to participate in a highly dangerous drug sting with one of the most violent Mexican drug cartels. Lawrence Chapa, 53, (right) the driver, (who had been arrested in 2010 for possession of a controlled substance) was shot eight times. The sting went badly and resulted in the killing of Patty’s driver and shooting up his tractor-trailer. He claimed conversion, abuse of process, and constitutional torts, but U.S. District Judge Lee Rosenthal ruled that the U.S. Drug Enforcement Administration is not liable to him even for the repair of this tractor-trailer. It is all an example of the sweeping protection afforded to “discretionary” acts by federal officers.
Here is how the court described the facts:
“On November 18, 2011, this driver contacted DEA Task Force Officer (“TFO”) Villasana, a City of Houston police officer deputized as a DEA agent. The driver told Villasana that he had been asked by someone with the Zeta drug cartel “to transport 1800 lbs. of marijuana from Rio Grande City, Texas to an individual in the Houston area.” (Docket Entry No. 53, Ex. A ¶ 4). Patty’s driver told Villasana that “he had contract work that would put him in the vicinity of Rio Grande City, Texas,” and that “he would tell the owner of the tractor-trailer that he was leasing that he had planned to spend Thanksgiving in Houston” and “knew of an inexpensive repair shop in Houston where he could take the truck for routine maintenance and needed repairs.” (Id., ¶ 5). The driver did not tell Villasana the name of [*3] the truck’s owner. (Id.). On November 20, 2011, the driver called Villasana again and told him that he had been instructed to pick up and transfer the marijuana the next day. (Id., ¶ 7). Villasana and the driver had no further discussions. (Id.).
The DEA Task Force decided to conduct a controlled drug delivery using Patty’s driver and truck, targeting several suspected drug smugglers associated with the Zeta cartel. The Task Force “met and devised a surveillance plan” calling for the tractor-trailer to “remain under surveillance at a safe distance by undercover vehicles and aircraft, until the actual delivery of the narcotics took place at a prearranged meeting place” in Houston. “At that point, law enforcement would converge, arrest the suspects[,] and seize the narcotics.” (Id. ¶ 8).
On November 21, 2011, Patty’s driver picked up the load of marijuana in Rio Grande City and began hauling it to the prearranged meeting point in Houston. The plan quickly deteriorated. Several heavily armed cartel members in three sport-utility vehicles intercepted the truck in northwest Houston. The ensuing firefight wounded an undercover Harris County Sheriff’s deputy and killed Patty’s driver. Patty’s [*4] truck was “wrecked and riddled with bullet holes.” (Docket Entry No. 34, ¶ 15). The DEA temporarily impounded his truck but returned it to him in November 2011, still in damaged condition. (Docket Entry No. 53, Ex. B, at 7).”
Patty alleged that the entire operation was negligent. In addition to the death of his driver, a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy after mistaking him for a cartel member. Four attackers were arrested and charged with capital murder. Yet DEA refused to pay the company for any damages or to supply any support to protect the family or their business from retaliation by the cartel.
Judge Rosenthal ruled for the DEA under the The discretionary function exception that bars
[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the
execution of a statute [*12] or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
28 U.S.C. § 2680(a).
Judge Rosenthal found Judge Rosenthal found that no formal policy, regulation, or statute required Patty’s consent before using his vehicle for the covert controlled drug delivery. Accordingly, this decision “was a choice that required judgment.” Even bad judgment.