The FBI has very broad immunity from claims that it failed to do its duty. In this instance, the agency kept silent while it knew that an extremist anti-immigrant group planned to invade an Arizona home, which ended in the shooting murders of a 9-year-old girl and her father, and wounding of the girl’s mother.
The 9th U.S. Circuit Court of Appeals, in a 2-1 vote Wednesday, upheld dismissal of the claims by the surviving victim, Gina Gonzalez, that the FBI failed to warn local police that it knew a home invasion was planned by the Minutemen American Defense in 2009. The decision dismisses her claim for damages for wrongful death of her husband and daughter.
“We hold that the FBI’s decision whether or not to disclose was discretionary,” wrote Judge Jay Bybee, joined by Judge John Owens.
What the FBI failed to disclose was that an informer learned in 2009 that the Minutemen American Defense, (MAD) a vigilante group that advocates against illegal immigration and patrols the U.S.-Mexico border for illegal crossings, planned to invade a home in Arivaca, Arizona, intending to steal drugs, guns and money to fund its operations.
The informer was involved in the planning, warned Colorado FBI agent Chris Andersen, that the plan was to “hit the house like a SWAT team.” The informer gave Andersen a map drawn by the group’s leader and warned that the plotters posed an imminent threat, according to the court.
Andersen gave the map to the Arizona FBI office, but the map was lost and neither Andersen nor anyone else warned local police.
Fifteen days later, three members of MAD, wearing masks and carrying guns, stormed Gonzalez’s home at 1 a.m. in May 2009, murdered her husband, Raul Flores Jr., in front of her, wounded her twice and one of the vigilantes then reloaded and shot her nine-year-old daughter Brisensia point-blank in the face, according to the court. Gonzalez was able to crawl away to call 911 and grab her husband’s hand gun. She wounded one of her attackers before they fled.
The plotters included Shawna Forde, of Denver, who hatched the plan to link up with drunk dealers in Arizona, to invade a rival dealer’s home to steal drugs, weapons and money to fund MAD, according to the court. But FBI informer Robert Copley was so concerned about the planned “operation” in Arivaca, Arizona, that he warned FBI agent Andersen.
Gonzalez argued that the U.S. Attorney General’s guidelines require the FBI to disclose information to local law enforcement when a field office learns of credible “serious criminal activity” not within the FBI’s jurisdiction, except if it would jeopardize an ongoing investigation.
“In our view, the district court correctly concluded that the guidelines do not prescribe a mandatory course of conduct with respect to the FBI’s sharing of information with state or local law enforcement agencies,” Bybee wrote.
[Bybee was head of the Bush Administration’s Office of Legal Counsel and signed off on waterboarding in the famous 2002 “torture memo.” He was appointed to the 9th Circuit in 2003 by Bush, without public disclosure of his role in the torture memos to the Judiciary Committee.]
In dissent, Judge Marsha Berzon called the events “preventable.” “The majority’s mantra that this case concerns ‘investigation and prosecution of crime’ is thus simply wrong, and its voluminous citations to the discretionary nature of criminal investigations and prosecutions are simply beside the point.”
“I would hold that the FBI’s guidelines here at issue are mandatory,” she said. The Federal Tort Claims Act discretionary exemption does not apply to Gonzalez’s claim that the FBI negligently failed to disclose the threats to local law enforcement. Under FBI policy the threats “should have been conveyed,” she wrote.
In 2011, Forde, who founded MAD, was sentenced to death for her role in the killings. Two others, Jason Bush, a white supremacist was also sentenced to death after a separate trial and Albert Gaxiola, also convicted of murder, was sentenced to life in prison.
Case: Gonzalez v. USA, No. 13-15218