Posted: 12/26/2003 6:58:19 AM EDT
Man shot by agent faces legal challenge
By Gail Gibson
A senior Justice Department lawyer has indicated that there is no legal basis for the government to try to settle a $10 million federal lawsuit brought by a Pasadena man who was mistakenly shot in the face nearly two years ago by an FBI agent searching for a bank robber, according to newly filed court records.
The government lawyer also has warned that if the lawsuit ends with a judgment against Special Agent Christopher R. Braga and one of his supervisors, there is no guarantee that the federal government would reimburse them for the damages - suggesting that shooting victim Joseph C. Schultz could walk away with little, if any, compensation.
That assessment of the case by Sal D'Alessio, a senior trial attorney with the Justice Department's constitutional torts division, was relayed in court papers filed this week by Braga's attorney, Andrew C. White.
According to D'Alessio, "there is no legal basis for the government to enter into settlement negotiations in this case as long as it is not a party to the action." In his lawsuit, Schultz named the individual agents as defendants under a so-called Bivens claim instead of suing the federal government under the Federal Tort Claims Act.
The Federal Tort Claims Act allows people to sue the government for alleged wrongdoing by its agents. But the law prohibits plaintiffs from collecting punitive damages, and the cases are determined by a judge instead of jury.
Under a Bivens claim, a plaintiff can sue a government agent directly and can seek punitive damages. But White's court filing this week suggested that it could be difficult for Schultz to collect damages, if any are awarded, because the agents would have to go through a complex process to request reimbursement, or indemnification, from the government.
The filing quoted D'Alessio as saying that "indemnification is not routinely approved in cases where, in the government's view, the plaintiffs have used a Bivens action to circumvent the limitations inherent in a claim under the Federal Tort Claims Act."
"Mr. D'Alessio stressed that this issue is not an unfamiliar one for the Department of Justice and that plaintiff's attorneys understand that they are taking significant risks by choosing not to pursue an FTCA action in cases such as this one," White wrote.
Schultz, now 21, was shot in the face March 1 last year after FBI agents searching for a bank robber mistakenly stopped the car being driven by Schultz's then-girlfriend, Kristen M. "Krissy" Harkum. Harkum, now 17, was not wounded in the shooting, but she also has filed a $10 million lawsuit in U.S. District Court in Baltimore seeking compensation for "severe emotional injury."
In their lawsuits, filed this year, Schultz and Harkum alleged that the agents disregarded bureau arrest policies and then played down the potentially deadly results. The lawsuits named as defendants Braga, as well as two of his supervisors - agents Henry F. Hanburger and Lawrence S. Brosnan.
U.S. District Judge J. Frederick Motz last month threw out all claims against Brosnan and limited the claims brought against Braga and Hanburger.
In this week's court filing, White said D'Alessio had stressed that, "unlike many states, the federal government does not have a mandatory indemnification law with respect to work-related judgments against employees.
"In this case, he told me that there is no guarantee that the United States will indemnify either of the agents in the event of a judgment, even if the FBI would like to do so," White wrote.
So the Government declares this a good shoot (which it wasn’t by any stretch of the imagination) and now is threatening to let the agents swing in the wind, thereby not having to take any of the heat for what they said was appropriate behavior.
Is that about it?
I guess a byproduct of this (if the Agents to get nailed in court) is that the rest of the Agents might be a little more careful next time they find themselves in the same situation knowing that the Bureau isn’t going to back them up.
This happened in California?
California law protects peace officers, who are acting in their official capacity, from being sued and found personally liable. Their employer pays any judgment unless the plantiff can prove "gross negligence" which is a very hard standard to prove in most courts.
1. It's a federal case against federal employees, which means that no state's employee-indemnification laws will apply.
2. The victim made a decision to sue the responsible federal agent(s) personally rather than in their capacity as employees of the federal government. He presumably did this because their is no limit on the amount of actual damages he can recover, and because he can get punitive damages as well. If he sued the dedicated, careful, devoted servants of the law in their official capacity or (as he could readily do) directly sued the gov't, he would face some limitation (I don't know exactly what) on damages, and would not be able to collect punitives. I guess the victim figures that these agents have assets which are subject to levy, which strikes me as a pretty stupid guess, unless there is some reason to believe that they've received and banked bonuses based on arrogance and the danger they present to the public.
3. The real issue here is why the Christopher Braga is not either in jail or providing unarmed security at a Jack-in-the-Box in Watts.
The shooting occurred in Pasadena Maryland. It is about time JBTs are held directly accountable for their actions. Hopefully, Special Agent Braga will be the kid's slave for the rest of his life - until he pays off a multi-million dollar judgement with interest. Braga's only way out is to paint his ceiling.