Who Pays When The DEA Destroys Your Vehicle And Kills Your Employee During A Botched Sting? Hint: Not The DEA

The DEA likes to borrow stuff. It’s just not very good about returning borrowed items in the same shape it got them.

Like a woman’s Facebook account.

Or a businessman’s semi truck.

And his employee’s life.

Craig Patty runs a tiny trucking company in Texas. He has only two trucks in his “fleet.” One of them was being taken to Houston for repairs by his employee, Lawrence Chapa. Or so he thought.

In reality, Chapa was working with the DEA, which had paid him to load up Patty’s truck with marijuana and haul it back to Houston so the DEA could bust the prospective buyers. That’s when everything went completely, horribly wrong.

[A]s the truck entered northwest Houston under the watch of approximately two dozen law enforcement officers, several heavily armed Los Zetas cartel-connected soldiers in sport utility vehicles converged on Patty’s truck.

In the ensuing firefight, Patty’s truck was wrecked and riddled with bullet holes, and a plainclothes Houston police officer shot and wounded a plainclothes Harris County Sheriff’s Office deputy who was mistaken for a gangster.

The truck’s driver was killed and four attackers were arrested and charged with capital murder.

Until Patty received a call notifying him that his employee had been killed, he was completely unaware of the DEA’s operations involving both his truck and his driver. Unbelievably, things got even worse for Patty after this discovery.

Patty’s truck was impounded by the DEA. After it was released to him, it was out of service for several months as it underwent more than $100,000-worth of repairs. The DEA offered him no financial assistance for the truck it helped fill with bullet holes nor did it offer to make up for the revenue Patty lost while his truck was out of commission. His insurance company likewise turned down his claim, citing his truck’s use in a law enforcement operation.

Nor did the DEA offer to do something to repair his newly-acquired reputation as a drug runner and/or DEA informant — something that makes Patty’s life a little bit more dangerous.

Nor will it have to. A federal judge has dismissed Patty’s lawsuit against the DEA seeking up to $6.4 million in damages. (h/t to attorney Mark Bennett, who previously advised Patty but did not represent him in this lawsuit.)

A Houston-based federal judge ruled that the U.S. Drug Enforcement Administration does not owe the owner of a small Texas trucking company anything, not even the cost of repairing the bullet holes to a tractor-trailer truck that the agency used without his permission for a wild 2011 drug cartel sting that resulted in the execution-style murder of the truck’s driver, who was secretly working as a government informant.

The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because “clandestine.”

No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders…

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.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted.

Patty responded that Villasana’s own testimony ran contrary to this declaration’s assertions.

Patty argues that DEA policy prohibited Villasana’s actions… He points to Villasana’s deposition testimony that “[i]f we’re going to use somebody else’s vehicle, we have to have permission,” and that “if [Villasana] knew who the owner was and the informant would have said to [him], Hey, listen, so-and-so, [the owner] owns this truck and I’m going to do this, [he] would say, Well, we need to get ahold of [the owner].”

The judge points out that Villasana also testified that he was “not aware” of any policy instructing him to notify the vehicle’s owner of its potential use in a drug sting operation, nor was he under any obligation to even determine the identity of the owner through DMV records. No permission was needed, at least not as stipulated by DEA policy. What Villasana spoke of in his testimony was something left solely to his discretion.

So, it would appear the government — especially law enforcement agencies — can take stuff but are under no legal obligation to return it in working order. Nor are they expected to compensate the owner for any damage sustained.

This argument, perhaps the most solid of the multiple presented, dead ends thusly.

In any event, Patty fails to explain how these constitutional provisions specifically prescribed a different course of conduct or specifically proscribed what the officers did. The record shows that the DEA task force members did not know Patty’s name, were under the impression that his driver was the vehicle’s rightful lessee, and third parties caused the vehicle damage. To borrow a phrase from qualified immunity law, Patty has not shown that the “clearly established law” in place when the undercover operation was planned and implemented made the officers’ conduct unconstitutional.

In the end, it’s the crime-fighting ends that justify the means — even if the means include destroying half of a businessman’s fleet of vehicles and turning him into a potential drug cartel target.

Orchestrating a covert controlled drug delivery using a vehicle and driver unconnected to any law enforcement organization to obtain evidence against a suspected drug cartel smuggling operation to prosecute those responsible fits within and furthers these policy goals. Deciding to carry out the operation without giving the vehicle owner advance notice and obtaining his consent is consistent with maintaining the covert nature of the operation and therefore with the policy goals.

Patty argues that Villasana’s testimony shows that he did not make a conscious decision whether to get Patty’s permission to use the truck, and therefore did not consider public-policy interests. But “the proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was ‘susceptible to policy analysis.’” Spotts v. United States, 613 F.3d 559, 572 (5th Cir. 2010) (quoting Gaubert, 499 U.S. at 325). Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception.

Furthermore — quoting previous Eighth and Ninth Circuit Court decisions:

“…discretionary, policy-based decisions concerning undercover operations are protected from civil liability by the discretionary function exception, even when those decisions result in harm to innocent third parties.”

TL; DR, courtesy of Andy Vickers, Patty’s attorney:

A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes.

Query:   is our federal government liable to pay for the damages to you and your property?

Answer:   Nope.

Law enforcement immunity, combined with deference towards the judgment of those in the business of busting bad guys means it’s almost impossible to force the government to reimburse private citizens for property taken without permission and damaged during the course of its “covert” use. Maybe the DEA could just bypass the legal process and cut Patty a check for the repairs? You know, just to be “neighborly” and show that we’re all Americans here and no one — not even the Drug Enforcement Agency — is “above’ making amends when things go horribly wrong.

Not a chance. To do so without an accompanying legal piece of paper explaining how this payment is not an admission of wrongdoing would be to admit fault, however implicitly. And the government doesn’t want to be facing any more lawsuits than it already does. In this case, it saw a chance for a swift, cheap dismissal (thanks to some poorly-aimed arguments) and took it. And, barring a successful appeal, the decision continues the trend of courts finding law enforcement officers and federal agents culpable for their actions in only the most egregious cases.

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