Jaycee Dugard, the woman abducted, raped and held captive 18 years by Phillip Garrido, lost her bid to hold U.S. Bureau of Prison and parole officials liable for alleged failure to adequately supervise Garrido.
The 9th U.S. Circuit Court of Appeals, in a split 2-1 vote Tuesday, held that the U.S. can only be liable to the same extent a private individual might be under similar circumstances. The majority said under California law private companies that operate rehabilitation facilities are not liable to the public at large for the conduct of inmates or paroles under their supervision.
Likewise, the federal government could not be held to account on that basis, according to the majority signed by Judges Richard Clifton and John Owens.
“The United States cannot be held liable under the [Federal Tort Claims Act] for the conduct of the parole officer here,” the majority said in a non-precedential order.
In dissent, visiting Judge William Smith of Rhode Island, said the U.S. cannot be compared to private rehabilitation centers. The FTCA provides that the U.S. may be liable for negligent conduct of its employees, the same as private employees may be liable.
Dugard sued for herself and on behalf of her daughters, fathered by Garrdo during years of sexual assaults.
The lawsuit details the harrowing years of her captivity as a sex slave of Garrido’s from the age of 11 when she was kidnapped from while walking near her South Lake Tahoe home.
As a result of Garrido’s repeated assaults Dugard became pregnant. She gave birth to two children at age 14 and 17 in the backyard sheds Garrido had fashioned to isolate her and she did so without medical care or help, according to the suit.
But her suit also recounts Garrido’s history of prior convictions for sexual abuse and rape of other young women, including a woman he kidnapped in 1976 at age 25 in the Tahoe area. The suit alleges she was handcuffed and taken to a storage shed was she was raped over a six hour period by Garrido. Police discovered a broken lock on the shed and eventually captured Garrido. He was sentenced to 50 years in federal prison, the suit states.
Yet federal authorities released him after 11 years and did so allegedly after a 35 minute interview with him and without the prosecutor or defense lawyer in his case present. He was returned to Nevada authorities in 1988 to finish a state prison term but released eight months later on parole to U.S. Probation Office in Northern California.
Despite Garrido’s repeated parole violations for abuse of drugs and alcohol, he remained free on parole in 1991 – just three years after his prison release – when he kidnapped 11-year-old Dugard, the suit states.
In addition, the suit alleges that shortly after his release he appeared at the workplace of his 1976 rape victim and in another incident a co-worker at a nursing home allegedly quit because of his unsolicited sexual attention. “Shockingly, federal parole authorities never followed up on any of these claims and failed to bring these alarming incidents to the attention of the U.S. Parole Commission,” wrote Dale Kinsella, Dugard’s attorney.
Kinsella also accused federal parole officers of failing to visit Garrido’s home for 40 straight months between 1991 and 1995.
Under California tort law, “where there is a special relationship, there is a duty to warn or control that extends to foreseeable, but not readily identifiable victims, provided that the action required would be reasonable and not futile,” Smith wrote in dissent.
For those reasons, Smith said he would reverse the trial court’s summary judgment and reinstate Dugard’s case.
The suit sought unspecified damages from the federal government asserting the Bureau of Prisons and the U.S. Parole authorities were negligent and allegedly failed to properly supervise and incarcerate Garrido for parole violations. And the alleged failures were the indirect cause of Dugard’s kidnap and years of sexual abuse.
Acting as visiting judge in the trial court was 9th Circuit Judge Carlos Bea.
Case: Dugard v. United States, No. 13-17596
Trial Court Case: Dugard v. United States, No. C11-4718DMR