Judge tosses suit filed by slain agent's family over Fast and Furious

2013-11-16T20:13:00Z 2014-02-10T09:41:28Z Judge tosses suit filed by slain agent's family over Fast and FuriousBy Howard Fischer Capitol Media Services Arizona Daily Star
November 16, 2013 8:13 pm  • 

A federal judge threw out a lawsuit filed against federal officials connected with the botched Fast and Furious program by the parents of slain Border Patrol Agent Brian Terry.

In an eight-page ruling, U.S. District Judge David Campbell said he recognizes that Terry’s parents, Kent and Josephine Terry, “have suffered a great loss, and that any financial remedy is likely insufficient to redress their injury.”

But Campbell pointed out that Congress approved several ways of dealing with federal agents who die in the line of duty, including the federal Public Safety Officers Benefits Act. And he said that means the only relief the family can get is what that law provides.

The attorney for the parents acknowledged that law, but called it inadequate because it provided no separate deterrence against government wrongdoing.

Campbell said that may be true. But he also said it’s legally irrelevant.

“The compensation available under the PSOBA (the federal law) is intended to remedy precisely the harm that plaintiffs have suffered, namely the tragic death of their son,” Campbell wrote. “It is not the proper role of this court to second-guess the remedial action established by Congress, find it insufficient, and impose an additional judicially crafted remedy.”

Robert Heyer, Brian Terry’s cousin, said Saturday that the family learned about the ruling late Friday and is “very disappointed.”

He said the issue goes beyond the question of financial compensation.

“This was the family’s effort to hold those responsible for Fast and Furious accountable,” Heyer said.

“Unfortunately, the judge did not look at any of the egregious behavior of the U.S. Attorney’s Office. He merely looked at statutory procedures Congress had set up” in cases of the death of a federal agent, procedures Heyer said fail to recognize the difference between an officer killed in a motor vehicle accident and one, like Terry, shot to death because of what the family believes was negligence by federal officials.

The lawsuit is a direct outgrowth of Fast and Furious, a plan hatched by the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow “straw” buyers for Mexican drug cartels to legally purchase firearms from Arizona dealers. The plan was to track the weapons to the cartels.

But ATF lost track of thousands of the weapons. And two of them turned up at the scene where Terry was shot and killed in December 2010 during a firefight with drug runners near Rio Rico.

After filing a $25 million claim against ATF which was not settled, family members sued six managers and investigators for ATF as well as a federal prosecutor. The parents said the guns should have been intercepted before they could have been used.

Campbell acknowledged that the U.S. Supreme Court has recognized there is an implied right of action by individuals against federal officers who violate someone’s constitutional rights.

But the judge said that right to sue has to be weighed against whether Congress has provided an alternate process for protecting that person’s rights. And he said that is clearly the case here.

Campbell said there are specific benefits laid out under the Federal Employees Retirement System in cases of disability or death of a federal worker.

Similarly, the judge said that the Federal Employees Compensation Act establishes a “comprehensive and exclusive compensation scheme for federal employees.” And Campbell said the Public Safety Officers Benefits Act is specifically designed to provide benefits to survivors of federal and other law enforcement officers killed in the line of duty.

While acknowledging those laws, the parents argued they do not preclude a separate lawsuit where they can adjudicate their claims in a public forum, before a neutral arbiter. But Campbell said that does not matter since Congress “provided some relief that it considers adequate to remedy constitutional violations.”

“As the Supreme Court has made clear, the bedrock principle of separation of powers counsels against judicially created remedies when Congress has established a remedial scheme,” Campbell wrote. “Congress has done so here.”

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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