Metropolitan News-Enterprise


Monday, August 29, 2016


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In Jaycee Dugard Case:

U.S. Not Liable for Inept Parole Officers, Panel Rules


From Staff and Wire Service Reports


The U.S. government cannot be held liable under the Federal Tort Claims Act for the incompetence of federal parole officers in California, the Ninth U.S. Circuit Court of Appeals ruled Friday.

The ruling came in a 14-page opinion by Judge John Owens in the case brought by Jaycee Dugard, whose horrifying 18-year ordeal at the hands of parolee Phillip Garrido and his wife made her world-famous. The panel originally rejected Dugard’s claim in a brief, unpublished disposition in March.

“While our hearts are with Ms. Dugard, the law is not,” Owens wrote.

Because California law would not impose liability on a private provider of rehabilitation services for the types of errors that parole officers made in supervising Garrido, the jurist explained for the divided panel, she has no remedy under the FTCA.

It was seven years ago Friday that Dugard’s captivity came to an end after Garrido brought her to a parole office in Concord. Agents were investigating Garrido’s relationship to two young girls he had taken on a campus visit to UC Berkeley, who turned out to have been born to Dugard while she was in captivity.

Dugard was just 11 years old when she was grabbed while on a street in the South Lake Tahoe area in 1991. It was the third time Garrido had kidnapped someone from the same area, and he was still on parole at the time of Dugard’s disappearance.

Dugard was drugged and raped repeatedly by a methamphetamine-fueled Garrido.

$20 Million Settlement

Dugard settled her claims against California, based on the negligence of state authorities, for $20 million, but she also sought to hold the United States for its lax supervision of Garrido’s parole.

He was supposed to have been required to abstain from alcohol and drugs, and monitored with regular testing. 

“Medical professionals described him as ‘a time bomb’ and ‘like a pot boiling with no outlet valve,’” Owens noted.

Garrido racked up roughly 70 drug-related parole violations in the 30 months after his release. They would have returned him to prison, but parole officers failed to report any of them, the judge said.

Among other things, the agents repeatedly failed to report to their superiors that Garrido, who had a history of substance abuse, was failing drug and alcohol tests.

Ninth Circuit Judge Carlos Bea, sitting as an assigned district judge, granted the government’s motion for summary judgment. Owens said that was the correct ruling, calling parolee crime a regrettable but inevitable fact of life for which the government cannot be held liable.

“Each member of the general public who chances to come into contact with a parolee or probationer must risk that the rehabilitative effort will fail,” Owens wrote, quoting a 1979 Court of Appeal opinion holding that the Synanon Foundation owed no duty to the plaintiff to control the behavior of a convict who escaped from its private facility and shot the plaintiff.

“Despite this increased danger, rehabilitation is an endeavor the State of California values,” Owens continued. “Unless we adopt a ‘throw away the key’ approach to convicts, tragic crimes by parolees and probationers inevitably will occur. No judge wants to deny Dugard relief, but the FTCA, through the lens of California law and its focus on rehabilitative efforts, does not permit relief under the circumstances here.”

Visiting Judge Dissents

Judge Richard Clifton concurred, but Chief U.S. Judge William Smith of the District of Rhode Island, sitting by designation, dissented.

“As the majority states, our hearts are with Ms. Dugard,” Smith wrote. “But for the incompetence of both California and federal officials, the unspeakable crimes committed by Garrido would never have occurred. Ms. Dugard has been compensated by California; and in my view she should have her day in court against the federal government as well. I differ with the majority’s conclusion that the law does not allow her this, and therefore I respectfully dissent.”

He went on to say:

“Here, the policy considerations undergirding the rehabilitation center exception cases are plainly not present, and the warning/control that plaintiff claims should have been made both would likely have been effective and would have promoted exactly the behavior that tort law is meant to promote: greater care, vigilance, and concern for the safety of foreseeable victims.”

Jonathan Steinsapir of Santa Monica’s Kinsella Weitzman Iser Kump & Aldisert represented Dugard.

“We are happy that the court granted our motion to publish the disposition, but we are obviously disappointed with the result,” Steinsapir said in an email to Courthouse News Service. “We believe that the dissent more accurately reflects the state of the law in this area, and we intend to ask for rehearing, including a renewed request that the Ninth Circuit certify these unsettled issues of California law — upon which there was substantial disagreement between the three federal judges on this appeal — to the California Supreme Court for resolution.”

The Justice Department’s Patrick Nemeroff represented the government. Nemeroff and the Department of Justice declined to comment.

Garrido is now serving a 431-year sentence. His wife Nancy Garrido is serving 36 years to life.

The case is Dugard v. United States, 13-17596.


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