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.
Wow totally outrageous. I kan’t believe they werent held responsible. Is Therese ni end to the abuse and korruption forces by the FEDS? Dissolve the union i så.
The truck was not leased to the driver. He was a contract driver I had hired 5 weeks prior.
The original plan:
Lawrence Chapa, after returning from California, would drop the truck in Weatherford, just west of Fort Worth. His personal pick up was parked there at the yard of D&T Trucking. Chapa was to park the Kenworth and get in his pick up and go to Houston for the holidays. He was to return on Friday after Thanksgiving, get back in the Kenworth and head back to California with another load.
The ruse:
While in route to Weatherford, (he was now in New Mexico, heading east) Chapa contacted me, explaining several repairs that required immediate attention. I made several calls to set up repairs but was told due to Thanksgiving holiday….repairs would take up to 2 weeks, maybe 3. I contacted Chapa and explained the down time situation we were faced with.
Lawrence then informed me that he had a buddy who had a shop in Houston. Lawrence had sent the Vin # to his buddy and it just so happened, he had the parts on the shelf. Lawrence told me he could take the truck all the way to Houston, get it repaired and it would be ready on the Friday after Thanksgiving. He said it was along time buddy and that he would take care of us and avoid the downtime we were faced with, if truck was left in Weatherford as originally planned.
I agreed to the new plan. Lawrence Chapa did not go to Houston, rather he took the truck straight to Rio Grande City, Tx……. to go to work for his “other employer” The United States Drug Enforcement Agency….who was to pay him 5000$ for his part in the sting operation.
Here is key component:
Law enforcement was aware of the ruse. Lawrence Chapa told them he had lied to the “OWNER/BOSS” to get the truck free for the operation.
Just wanted to clear up the comment about the truck being leased to Lawrence Chapa. It was not leased to him. He worked for me, Craig Patty as a driver who hauled frac sand in the oil and gas fields.
Reblogged this on veritasusa and commented:
When the government protects itself from the most heinous, morally reprehensible and negligent acts of its agencies and agents in clear violation of the Constitution (here taking both life and property without due process) then the result is that none of us can feel secure from it, none of us have redress through the courts because that redress has been made moot. And boondoggles like this and Fast and Furious become common place, bad ideas that nobody stops before people die because they know neither they nor their agency will in any way ever be held responsible.
Yes – This is what the War on Drugs, and Yes, even the War on Terror net you. Ideas that sounded good on paper, but ultimately were just excuses for overreaching Executive police powers, the loss of Liberty, and the erosion of Civil Rights.
Once these things are gone they can not be reclaimed.
It also seems like the judge is using flawed circular logic: there can be no claim based upon the performance of the agent of a government executing a statute or a regulation AND there was NO regulation requiring the DEA to obtain the consent of the driver before using him and his truck.
So, if there was no regulation requiring them to tell him he was involved in the sting, and they did not obtain his consent before sending him into harms way, they were not operating under protection of a regulation were they?
I fail to see how the judge’s logic can apply as an excuse for the governments denial of due process in the taking of a life & property here. Or am I simply being dense expecting logic out of the federal court system.
One would certainly hope this one is ripe for appeal
It is certainly ripe.
I don’t know… Seems pretty clearly deprived of life and property by an act of the government without due process to me.
However, it does seem pretty clear that any contract made with the Federal Government would have to be considerably different than a contract with a private person specifically because of all of the protections that these agencies and agents are now legislatively afforded. This seems like a rich and unmined vein of contract law that could provide any number of firms a virtually unlimited income stream for the foreseeable future given the number of common everyday contracts in existence.
– or – I wonder if simply lengthy boilerplate exceptions would work for many of us common folk, as in this case, when suddenly confronted by a Federal Agency – from the DEA to the Department of Agriculture, who wanted to contract with us.
Curious minds want to know.
The Drug War is a corrupt, incestuous, boondoggle, that is an affront to the Constitution; this being just one of thousands examples.
Would it be possible to have avoided the judge’s ruling by pleading this as negligent performance of a “legitimate” function instead of all that intentional tort stuff like conversion etc.? Do you think there is a way around the approach the court (and DOJ) took by framing the cvase differently. (One suggestion that Squeaky already made was “taking.”)
The central problem is the increasing lawlessness and lack of accountability of our federal government. If we project this trend out, where do we think it will lead?
A tractor trailer can cost as much as a house – over $250,000 together.
They are liable for his death, and liable to the company for the damages. Did he have family? They need to pay his heirs compensation, as well.
It is unbelievable to me that they would use substantial company assets without the approval of the owner, and put a man’s life in danger, and just walk away from the carnage.
Could they do that to a rental property, too? Destroy a house, which would not be covered by insurance, based on the renter’s agreement and not the owner’s, and just walk away?
Coming up next is the ‘old traffic ticket’ routine. You can pay the cop who stopped you or be arrested and taken to jail and work yourself out of ‘that one’. And there we go laughing and deriding Mexico. The judge would fit right in in Mexico, Moscow, anywhere in Africa, and a host of other places where they make it up as they go, clearly understanding on which side their bread is buttered.
Once again the incompetent fools who run the DEA have engaged in conduct which is reprehensible and results in the death of an American.and the destruction of property I wonder if the cartel used weapons supplied to them by the US in its idiotic Fast and Furious sting.
Generally speaking, there isn’t an independent watchdog on the federal level to police federal corruption. Since 9/11 the federal government has also “deputized” state and local agencies wiping out any real checks & balances on public corruption.
Apart from overreaching laws through Commerce Clause jurisprudence that effectively gives Congress plenary authority over everything in our lives (while reducing the Tenth Amendment to a vestigial appendage), I think the office of Attorney General should be an elected position rather than filled by presidential appointment and ratification. The incentive to acquiesce to the President and/or Congress gives at least the appearance of impropriety by any reasonable measure, and we all know the level of influence goes way, way beyond that.
This reminds me of the Hollywood vignette where the cop waves down a car and while presenting his badge tells the hapless driver munching on his cheeseburger to get out (now!) because the cop needs to use the car for official business, that of chasing the bad guy down at 100 miles per hour. It looks like a case of common law conversion (civil theft) to me, and certainly not “due care” by any stretch.
The fact that the FBI can target and use citizens previously arrested or convicted of offenses as participants in dangerous sting operations is bad enough but getting them killed and destroying property in the process with out any liabilty or responsibility is wrong. The law of immunity for federal officers as well as police officers generally should and must be changed.
Turley as usual clearly states this case of governmental misconduct- but characterizing it as ‘troubling’ is really not appropriate. This was a blatant miscarriage of justice.
The term, ‘Judgement call’, is the ‘get out of jail free card’ that the holder has to use whenever. The judge is the government and the issue is the precedent of recompense by the government for sloppy work or simply stuff that goes wrong.
The ability to call an incident one way or another at the discretion and interpretation by the ‘law’, has an available counterpart in the ceased property and funds by that very institution. The government seizes billions from criminals. This would be a perfect opportunity to complete the chain and award damages that directly or indirectly come from the criminals, who are the ultimate cause of the damage. The rest is BS regardless of whether a lauded judge spews it or not.
Some things are more clear than the law can ever be.
Well, I wonder if “eminent domain” applies here??? The government can’t take someone’s property without paying them the value thereof, and here—it could be argued that there was a confiscation and a taking.
Sooo, did the driver an “agent” with authority to make the agreement with the DEA, or was he acting in excess of his scope of authority???
Squeeky Fromm
Girl Reporter
Given that the driver was leasing the rig, I think the judge is right. Saying that, the feds and state morally owe the owner a new rig.
Homeland Security Agencies haven’t paid me damages for their Criminal Personnel who are politically targeting people like me for electronically monitored, surveillance burglaries either.