WEBVTT - Efforts to Hold Law Enforcement Accountable 0:00:03.160 --> 0:00:07.960 This is Bloomberg Law with June Brasso from Bloomberg Radio. 0:00:08.960 --> 0:00:13.560 Olympic gold medalists Simone Biles, Ali Raisman, and MICHAELA. Moroney 0:00:13.600 --> 0:00:16.120 are among the ninety women who are seeking more than 0:00:16.200 --> 0:00:19.760 one billion dollars from the FBI for failing to stop 0:00:19.960 --> 0:00:24.840 disgrace sports doctor Larry Nasser from sexually assaulting them when 0:00:24.920 --> 0:00:29.720 the agency first received allegations against him. Here's Biles testifying 0:00:29.760 --> 0:00:33.919 at a Senate Judiciary Committee hearing in September in reviewing 0:00:33.960 --> 0:00:36.400 the O I G S report, It truly feels like 0:00:36.440 --> 0:00:38.680 the FBI turned a blind eye to us and went 0:00:38.680 --> 0:00:40.920 out of its way to help protect U. S A 0:00:41.040 --> 0:00:44.239 G and U S O PC. A message needs to 0:00:44.280 --> 0:00:47.320 be sent. If you allow a predator to harm children, 0:00:47.520 --> 0:00:50.880 the consequences will be swift and severe. Enough is enough. 0:00:51.680 --> 0:00:54.600 I will close with one final thought. The scars of 0:00:54.640 --> 0:00:57.120 this horrific abuse continue to live with all of us. 0:00:57.480 --> 0:01:02.040 Joining me is Regina Calcatera of cal Katea Pollock, Regina. 0:01:02.120 --> 0:01:06.080 Did these gymnasts file a lawsuit here? It's not necessarily 0:01:06.120 --> 0:01:09.600 a lawsuit that was filed. What was significantly filed were 0:01:10.080 --> 0:01:13.640 claims against the federal government under the Federal Tort Claims Act, 0:01:14.240 --> 0:01:16.600 and if there is a claim to be brought against 0:01:16.600 --> 0:01:19.000 the federal government, you first have to actually file a 0:01:19.080 --> 0:01:21.840 claim and fill up documents and submitted to the subtle 0:01:21.880 --> 0:01:24.360 agency for them to consider what it is that you're 0:01:24.360 --> 0:01:28.280 asking for. So what the cases about is the gymnasts 0:01:28.360 --> 0:01:33.399 who were actually sexually assaulted by Larry Naster, the gymnast 0:01:33.560 --> 0:01:36.840 physician who was their position at M s U when 0:01:36.840 --> 0:01:39.559 they were training there and also for the Olympic team 0:01:39.560 --> 0:01:44.160 as well. He had been sexually molesting his students for 0:01:44.959 --> 0:01:51.480 the athletes for over thirty years. And in July, Stephen Penny, 0:01:51.480 --> 0:01:53.880 the head of Ewish Gymnastics, actually went to meet with 0:01:53.920 --> 0:01:57.640 the FBI in their Indianapolis office and advised the FBI 0:01:57.680 --> 0:01:59.880 that he has three gymnasts who want to come forward 0:02:00.080 --> 0:02:03.040 and explained to them what has been happening to them 0:02:03.080 --> 0:02:05.760 by Larry Nassa. They didn't follow up for a few 0:02:05.760 --> 0:02:08.680 months that they had a meeting in July and the 0:02:08.720 --> 0:02:11.160 first time that the FBI agents actually pick up the 0:02:11.160 --> 0:02:12.840 phone to speak to one of the gymnasts was on 0:02:12.880 --> 0:02:16.359 September two, several months later, and a conversation was had 0:02:16.400 --> 0:02:19.400 with one of the Gymnasts Mikayla Maroney, and it lasted 0:02:19.440 --> 0:02:21.880 for about three hours. At the end of the conversation, 0:02:22.080 --> 0:02:24.640 the agents abbot that is that at all. Then that 0:02:24.720 --> 0:02:27.480 day had a discussion with the US Attorney's office on 0:02:27.680 --> 0:02:29.440 what to do because they really didn't believe that they 0:02:29.440 --> 0:02:33.160 had jurisdiction over this particular matter. And UM was also 0:02:33.200 --> 0:02:36.639 concerned that the evidence may not rise to their ability 0:02:36.680 --> 0:02:39.600 to actually bring federal claims against NASA. So the U. S. 0:02:39.680 --> 0:02:43.200 Attorney for the Southern District of Indiana told them to 0:02:43.320 --> 0:02:47.640 actually transfer this over to the Lansing office of the 0:02:47.720 --> 0:02:51.919 FBI in Michigan, and that never happened. So eight months 0:02:51.919 --> 0:02:55.760 go by and the US Attorney and U. S. Gymnastics 0:02:55.800 --> 0:02:58.960 doesn't share anything. There's no follow up. So then what 0:02:59.040 --> 0:03:01.080 they did is they went to an other FBI office. 0:03:01.120 --> 0:03:03.680 They went to the Los Angeles office and share the 0:03:03.760 --> 0:03:07.120 same back pattern with them as well. There was an investigation, 0:03:07.360 --> 0:03:10.760 but the Los Angeles office also arrived at the same 0:03:10.960 --> 0:03:14.440 conclusion that the Indianapolis office has, is that they weren't 0:03:14.440 --> 0:03:16.760 so sure that they had enough evidence actually to bring 0:03:17.160 --> 0:03:20.079 a federal case against him based upon the sexual assault. 0:03:20.600 --> 0:03:24.280 And again they were supposed to advise the local authorities, 0:03:24.320 --> 0:03:27.480 because what both officers actually agreed to when they had 0:03:27.480 --> 0:03:29.280 these discussions, and this is what came out in the 0:03:29.320 --> 0:03:32.720 report that was issued by the Inspector General of the FBI, 0:03:33.120 --> 0:03:35.200 they both realized that this really should be dealt with 0:03:35.240 --> 0:03:38.160 by state or local authorities. So neither did the Los 0:03:38.240 --> 0:03:42.400 Angeles office or the Indianapolis office ever contact the attorney 0:03:42.440 --> 0:03:45.360 general in the state of Texas where this was happening 0:03:45.360 --> 0:03:47.640 by Nasser, or in the state of Michigan as well, 0:03:48.080 --> 0:03:50.840 or any local authorities after that. And it was not 0:03:51.040 --> 0:03:54.440 until the MSU campus police got a tip that a 0:03:54.440 --> 0:03:57.080 sixteen year old boy was assaulted by Nasser that they 0:03:57.120 --> 0:04:00.160 issued a subpoena and they went into NASA's house us 0:04:00.200 --> 0:04:02.760 to get some information. And then after that the local 0:04:02.760 --> 0:04:04.880 press picked it up. And when the local press picked 0:04:04.880 --> 0:04:07.920 it up, then the local FBI office and Lansing started 0:04:07.960 --> 0:04:10.720 taking a look at it. And that wasn't until about me. 0:04:12.800 --> 0:04:17.280 So it's confirmed in the Inspector General's report. There's no 0:04:17.400 --> 0:04:21.520 dispute that the FBI agents knew in twenty fifteen that 0:04:21.680 --> 0:04:25.560 Nasser was accused of assaulting gymnasts but failed to act, 0:04:26.040 --> 0:04:30.320 leaving him to continue the sexual assaults. So uster Napis 0:04:30.360 --> 0:04:34.119 actually went to the FBI in July and not until 0:04:34.240 --> 0:04:39.159 May the FBI actually get involved the local FBI. So 0:04:39.320 --> 0:04:41.840 between that time, some of the women that he was 0:04:41.880 --> 0:04:45.880 already assaulting he continued to assault, and also during that 0:04:46.040 --> 0:04:49.039 time he assaulted women that he didn't assault before. And 0:04:49.080 --> 0:04:53.080 there were seventy survivors of his sexual assault during that 0:04:53.120 --> 0:04:56.719 window of time that could have been prevented if the 0:04:56.839 --> 0:05:01.479 FBI actually stepped in, acted properly, documented it passed the 0:05:01.520 --> 0:05:04.760 investigation off to the local office and Lansing and did 0:05:04.760 --> 0:05:08.440 whatever they possibly could to mitigate anyone else being assaulted 0:05:08.440 --> 0:05:11.120 by him. Because at the time that the U S 0:05:11.160 --> 0:05:14.080 Gymnastics actually learned of this and went to the FBI, 0:05:14.160 --> 0:05:16.880 they fired him, but he also was working with the 0:05:16.920 --> 0:05:20.599 local high school, another local gymnastic team. He also worked 0:05:20.680 --> 0:05:23.960 at the Bella Caroli camp down in Texas, and so 0:05:24.000 --> 0:05:26.160 he was continuing some of his work there, so there 0:05:26.240 --> 0:05:29.680 was additional victims. Will pray basically that he was finding 0:05:30.080 --> 0:05:32.919 but if the FBI actually acted properly, they could have 0:05:33.000 --> 0:05:36.080 mitigated this and prevented this from happening. So within the 0:05:36.120 --> 0:05:38.520 past year you had a lot of the gymnastics, very 0:05:38.560 --> 0:05:41.920 high profiles like Shamone Biles and many others that testified 0:05:41.960 --> 0:05:45.320 before Congress and told them about what their experiences were 0:05:45.360 --> 0:05:47.919 and what the faults of the FBI was and the 0:05:47.960 --> 0:05:51.320 faults of the U S gymnastics team as well, and 0:05:51.640 --> 0:05:53.800 what they should have done, because there was also a 0:05:53.839 --> 0:05:57.240 lot of ethical lapses between the FBI and the U 0:05:57.279 --> 0:06:00.040 S Olympic team. But during this testimony and at a 0:06:00.120 --> 0:06:04.160 particular hearing christmer Pray, who's actually has U, the FBI 0:06:04.440 --> 0:06:08.320 took responsibility and it is extraordinary for any law enforcement 0:06:08.360 --> 0:06:12.480 governments executive to admit fault or admit liability, were let 0:06:12.480 --> 0:06:16.680 alone describe the conduct of an employee as a gross misconduct, 0:06:16.760 --> 0:06:19.640 and he apologized to them. So you have the statement 0:06:19.640 --> 0:06:22.680 of the federal law enforcement officer taken responsibility for the 0:06:22.720 --> 0:06:25.839 mouth seasons of his employees. And in the meantime, what 0:06:25.960 --> 0:06:29.359 it had transpired is the Inspector General of the FBI 0:06:29.400 --> 0:06:34.200 actually did his own investigation and he disclosed in this investigation, 0:06:34.440 --> 0:06:38.719 in this report that to the agents had lied, didn't 0:06:38.760 --> 0:06:42.800 properly follow up, didn't document, didn't try to mitigate it, 0:06:43.480 --> 0:06:45.960 and in fact that they had lied to the FBI 0:06:46.200 --> 0:06:48.880 as well, and the two agents are lying to those 0:06:48.920 --> 0:06:51.839 who are actually interviewing him, and one of the agents, 0:06:51.920 --> 0:06:56.839 agent Abbot, while he was meeting with Stephen Penny, who 0:06:56.839 --> 0:07:00.279 had a USA Gymnastics Stephen Penny had expressed to him 0:07:00.279 --> 0:07:01.920 that he was concerned that there's going to be a 0:07:01.960 --> 0:07:05.600 lot of blowback to him based upon the sexual assaults, 0:07:05.839 --> 0:07:08.440 and Abbott told him, don't worry about it. You know, 0:07:08.480 --> 0:07:11.720 I'll have the FBI say something positive about you, basically 0:07:11.760 --> 0:07:14.000 implying that that you came forward and you try to 0:07:14.000 --> 0:07:16.800 help out. And in the meantime, while they're having this discussion, 0:07:17.240 --> 0:07:19.600 Abbott and Penny are talking about a job to be 0:07:19.640 --> 0:07:22.360 the head of security for the US Olympic Committee, and 0:07:22.400 --> 0:07:24.120 then Penny is going to put in a good word 0:07:24.120 --> 0:07:26.560 for him. So then you have an Asian who actually 0:07:26.560 --> 0:07:29.600 has a different priority, and the priorities not to you know, 0:07:29.680 --> 0:07:32.320 bring light to the fact that these girls were sexually assaulted, 0:07:32.640 --> 0:07:34.560 but cover it up to protect the head of the 0:07:34.640 --> 0:07:37.160 U S Gymnastics. So this agent could possibly be the 0:07:37.200 --> 0:07:40.040 head of security for the Olympic Committee. So this is 0:07:40.080 --> 0:07:42.760 what was disclosed in the report. What I want to 0:07:42.800 --> 0:07:45.640 ask you before you go any further is since this 0:07:45.760 --> 0:07:49.680 is a claim filed under the Federal Tort Claims Act, 0:07:49.920 --> 0:07:53.640 what happens next. What happens next is once they file 0:07:53.720 --> 0:07:55.960 the claim, and in order to file the claim, they 0:07:55.960 --> 0:07:58.600 have to file it within you know, two years of 0:07:58.840 --> 0:08:01.120 when they were injured or or if there's some new 0:08:01.160 --> 0:08:04.720 information that came out. So recently the report was disclosed 0:08:04.720 --> 0:08:07.280 and the FBI said that they were not going to 0:08:07.320 --> 0:08:10.160 prosecute the two agents. But what they need to do 0:08:10.240 --> 0:08:12.000 is they basically need to file a form with the 0:08:12.000 --> 0:08:15.680 federal government stay what their damages are and which we 0:08:15.720 --> 0:08:18.000 know that they're claiming a billion dollars, but I think 0:08:18.000 --> 0:08:21.200 they divided it up amongst the different gymnuts for about 0:08:21.200 --> 0:08:23.960 fifty million each. They have to prove what their damages are, 0:08:24.320 --> 0:08:28.760 submit that documentation, and the FBI has a few options. 0:08:28.880 --> 0:08:31.000 The first option is that they could settle the case. 0:08:31.160 --> 0:08:33.240 You could sit down and have a discussion with them, 0:08:33.280 --> 0:08:36.720 which quite frankly, ethically immorality, that is what they should 0:08:36.760 --> 0:08:41.280 be doing because you already had the executive take responsibility. 0:08:41.559 --> 0:08:43.560 Or they could deny the claim. And if they deny 0:08:43.640 --> 0:08:47.000 the claim, then lossuits can actually be filed. But when 0:08:47.000 --> 0:08:49.520 those lassus of filed. They're actually filed before district court. 0:08:49.880 --> 0:08:52.800 But with all the evidence that the SI has compiled 0:08:53.200 --> 0:08:56.120 and the culpability that they have, and based upon what's 0:08:56.160 --> 0:08:58.880 in the Fiddle Torq Claims Act, is really in their 0:08:58.880 --> 0:09:01.360 best interests to sit down to have a discussion the 0:09:01.480 --> 0:09:05.559 billion dollar request. Do you think that that's sort of 0:09:05.800 --> 0:09:09.120 over the top. Well, what the Federal Tort Claims that 0:09:09.559 --> 0:09:12.960 requires is that the first time you put in the claim, 0:09:13.400 --> 0:09:15.920 whatever number you put there, you can't come back and 0:09:16.000 --> 0:09:19.200 increase that. Ever, So what they're trying to do is 0:09:19.320 --> 0:09:22.240 put in the maximum that they actually believe, but understanding 0:09:22.240 --> 0:09:25.600 that they're probably going to negotiate backwards because each individual 0:09:25.679 --> 0:09:28.959 claimant has to prove damages and those damages are based 0:09:29.040 --> 0:09:33.240 upon the state where they were assaulted and what those 0:09:33.280 --> 0:09:36.960 state laws are related to, um, you know, compensatory damages, 0:09:37.400 --> 0:09:39.880 because they won't get punitive damages under the Act, they 0:09:39.920 --> 0:09:43.120 won't get pre judgment interest. But if the state well 0:09:43.200 --> 0:09:46.400 where they were assaulted allows them to get compensatory damages, 0:09:46.440 --> 0:09:48.680 they could get that. So that's what they're going to 0:09:48.679 --> 0:09:52.360 be relying upon. So that fifty million dollar per athletes 0:09:52.480 --> 0:09:54.680 is pretty high. But they needed to do that just 0:09:54.840 --> 0:09:58.600 to insulate themselves as they're negotiating backwards. If this were 0:09:58.720 --> 0:10:01.559 a court case, it doesn't seem like there's even any 0:10:01.800 --> 0:10:06.640 discovery or investigation needed here. It's all been done. Yes, 0:10:06.880 --> 0:10:10.280 that is why morally and escally, the FBI should sit 0:10:10.320 --> 0:10:13.480 down and have a conversation and they should not continue 0:10:13.960 --> 0:10:17.600 having these young women being traumatized again. And there is 0:10:17.640 --> 0:10:20.240 several hundred million dollars that as setified every single year 0:10:20.280 --> 0:10:23.040 in Congress or the Judgment Act, and they pay out 0:10:23.040 --> 0:10:25.679 about over three hundred million dollars a year. There is 0:10:25.720 --> 0:10:28.200 already a pot of money that is set aside for 0:10:28.280 --> 0:10:31.080 judgments that are against the United States government. So this isn't, 0:10:31.360 --> 0:10:34.520 you know, an extraordinary claim that they brought. The number 0:10:34.600 --> 0:10:37.080 is high, but that number is gonna be little down 0:10:37.520 --> 0:10:41.720 who makes a decision about settling the case. It could 0:10:41.720 --> 0:10:45.200 either be the d o J with the FBI, and 0:10:45.240 --> 0:10:47.320 then if the case goes to court, it goes to 0:10:47.640 --> 0:10:50.400 a district court and it's a bench trial. So it's 0:10:50.400 --> 0:10:53.439 either going to be a federal district judge or it's 0:10:53.440 --> 0:10:55.560 going to be the FBI and d o J. Do 0:10:55.600 --> 0:10:59.080 you remember another case where you know, the FBI was 0:10:59.160 --> 0:11:03.559 sued for so much money, this seems like it's extraordinary. 0:11:03.720 --> 0:11:05.560 There have been other cases that have been brought in 0:11:05.600 --> 0:11:09.640 the past against them, not necessarily the FBI, but you know, 0:11:09.760 --> 0:11:13.840 other government agencies. But the one that was brought against 0:11:13.880 --> 0:11:17.800 the SBI, there was a hundred million dollars settlements. And 0:11:17.880 --> 0:11:20.560 this was a case where the FBI was you know, 0:11:20.840 --> 0:11:24.680 it was egregious government misconduct that were actually resulted in 0:11:24.760 --> 0:11:28.240 wrong full incarceration of several men who were falsely accused 0:11:28.240 --> 0:11:31.679 of participating in the Grizzly Gang slang. And that was 0:11:31.720 --> 0:11:34.439 a hundred million dollars As far as claims that came 0:11:34.480 --> 0:11:36.360 to add with this particular act, that's one of the 0:11:36.400 --> 0:11:39.679 highest recoveries. Let's just say the FBI decides it's not 0:11:39.720 --> 0:11:42.960 going to settle. Is there any kind of defense the 0:11:43.120 --> 0:11:46.960 FBI could interpose outside of the facts of the case. 0:11:47.600 --> 0:11:50.959 What the federal tort claim ax is it waves immunity 0:11:51.280 --> 0:11:54.400 in this particular situation. But what they can do is argue, 0:11:54.520 --> 0:11:57.400 you know, a series of things. One is, you know, 0:11:57.559 --> 0:12:01.280 this conduct that will allow how a planket to actually 0:12:01.360 --> 0:12:03.520 sue under this particular act, you know, has to be 0:12:03.559 --> 0:12:07.359 a government employee, which these two agents particularly you know, are, 0:12:07.559 --> 0:12:10.720 but they also would have had to perform the act 0:12:10.760 --> 0:12:14.000 that they performed within the scope of their duties, and 0:12:14.000 --> 0:12:15.880 and if they did, because they did, it was their 0:12:15.960 --> 0:12:18.400 duty to either do this or not do this. But 0:12:18.720 --> 0:12:23.040 so their omission of not passing on to the local 0:12:23.080 --> 0:12:26.360 office that these assaults were going on is an omission. 0:12:26.440 --> 0:12:28.720 It is within the scope of their duty. But there's 0:12:28.720 --> 0:12:32.480 an exception to that called the discretionary clause. So if 0:12:32.679 --> 0:12:36.640 these agents had discretion not to pass it on or 0:12:36.720 --> 0:12:41.120 not to bring you a federal action against them, that 0:12:41.280 --> 0:12:44.440 is what the FBI could argue, is that they had discretion, 0:12:44.880 --> 0:12:47.280 you know, not to prostitute federal claims, both in the 0:12:47.320 --> 0:12:50.920 Los Angeles office and in Indianapolis office because they didn't 0:12:50.920 --> 0:12:54.319 believe that the allegation rose to a federal case. That 0:12:54.800 --> 0:12:57.120 is the part that they may argue about discretion. But 0:12:57.160 --> 0:13:00.360 the fact that they live and they did not path 0:13:01.040 --> 0:13:04.080 do anything to mitigate or contact local authorities when they 0:13:04.120 --> 0:13:07.160 were told to do so is what the plaintiffs could 0:13:07.240 --> 0:13:10.520 argue back. But so there is that discretionary exception, and 0:13:10.600 --> 0:13:14.520 that exception is the most litigated defense by the federal 0:13:14.520 --> 0:13:17.920 government and used in these types of cases. As you mentioned, 0:13:18.000 --> 0:13:22.040 FBI Director Christopher Ray acknowledge that quote people at the 0:13:22.160 --> 0:13:25.200 FBI had their own chance to stop this monster back 0:13:25.240 --> 0:13:30.000 in tw and failed. And considering the publicity that this 0:13:30.040 --> 0:13:32.840 has gotten, and considering the fact that you have the 0:13:32.880 --> 0:13:36.360 guilty please by Nasser, you have the I G. S Report, 0:13:37.040 --> 0:13:40.920 it seems like it will be a case that's settled. 0:13:41.480 --> 0:13:45.040 I hope so. And it should be because they're beyond 0:13:45.080 --> 0:13:48.800 the beyond the discretionary exceptions, that is their only defense. 0:13:48.840 --> 0:13:50.480 And with all this evidence, like you said, that is 0:13:50.520 --> 0:13:52.800 out there, it's going to be very difficult for them 0:13:52.880 --> 0:13:55.840 to actually litigate this court this case in court. So 0:13:55.880 --> 0:13:58.200 it's best for them to settle and settle now. And 0:13:58.240 --> 0:14:00.600 the parties have to be flexible. You the plaints that 0:14:00.640 --> 0:14:02.400 will have to be flexible as far as you know 0:14:02.440 --> 0:14:04.520 what their damages are, because they still have to prove 0:14:04.520 --> 0:14:07.480 what their damages are. There are laws of scholarships, they're 0:14:07.559 --> 0:14:10.440 a laws of in some of them less less college. 0:14:10.880 --> 0:14:14.200 There's the trauma and emotional distress, UM. So they have 0:14:14.240 --> 0:14:16.320 to be flexible with coming down with that number. And 0:14:16.360 --> 0:14:19.920 I think if they sit down and UM, they could 0:14:19.920 --> 0:14:22.800 probably hash out a settlement within a few months for 0:14:22.920 --> 0:14:26.000 each one of them, because there's there's nothing else to defend. Yes, 0:14:26.080 --> 0:14:28.040 So let me ask you this. Suppose they can't reach 0:14:28.080 --> 0:14:31.800 a number, could they go to trial just on the 0:14:31.880 --> 0:14:36.240 damages portion? They would they If they can't reach the number, 0:14:36.240 --> 0:14:38.840 then they have to file a case after sixty days. 0:14:38.920 --> 0:14:41.960 When um within sixty days of what it is that 0:14:42.000 --> 0:14:44.080 there's some kind of an impass or the federal government 0:14:44.320 --> 0:14:47.080 denies what it is that they're asking, but they can 0:14:47.200 --> 0:14:51.160 go to court on damages. Thanks so much, Regina. That's 0:14:51.160 --> 0:14:56.520 Regina Calcatera of Calctera Pollock. Similar failures by federal law 0:14:56.640 --> 0:15:00.720 enforcers have led to major settlements in looting a hundred 0:15:00.720 --> 0:15:04.080 twenty seven point five million dollars for families of those 0:15:04.160 --> 0:15:08.400 killed or injured in twenty eighteen at Florida's Marjorie Stoneman 0:15:08.480 --> 0:15:12.440 Douglas High School. There, the FBI received a tip about 0:15:12.560 --> 0:15:16.160 five weeks before, but never forwarded the tip to the 0:15:16.200 --> 0:15:21.720 South Florida office. The Supreme Court has further weakened a 0:15:21.800 --> 0:15:25.320 doctrine meant to hold federal law enforcement and other officials 0:15:25.360 --> 0:15:30.080 accountable for violating constitutional rights. In a six to three decision, 0:15:30.200 --> 0:15:34.400 the justices would not allow a Washington State innkeepers excessive 0:15:34.400 --> 0:15:38.480 force claims against a US Border Patrol agent to go forward. 0:15:38.880 --> 0:15:42.640 The Court has consistently been narrowing what's referred to as 0:15:42.640 --> 0:15:46.720 a Bivens action, which allows citizens to sue federal officers 0:15:46.880 --> 0:15:51.520 who violate their constitutional rights for damages. In the majority opinion, 0:15:51.640 --> 0:15:55.560 Justice Clarence Thomas said the Court has declined eleven times 0:15:55.640 --> 0:15:59.640 to extend Bivens, but stopped short of overturning the fifty 0:15:59.720 --> 0:16:04.760 year precedent. The split was down ideological lines, and Justice 0:16:04.760 --> 0:16:08.120 Sonya Soto Mayor, joined by joice Is Stephen Bryan and 0:16:08.160 --> 0:16:12.040 Elena Kagan, said in dissent that the ruling closes the 0:16:12.080 --> 0:16:15.160 door to biven suits by many who will suffer serious 0:16:15.240 --> 0:16:19.840 constitutional violations at the hands of federal agents. Joining me 0:16:19.920 --> 0:16:24.840 is former federal prosecutor George Newhouse of Richard's Carrington. Tell 0:16:24.920 --> 0:16:27.240 us what happened here? You know the facts of the case, 0:16:27.960 --> 0:16:30.400 so a fascinating set of facts. There is a guy 0:16:30.480 --> 0:16:33.560 named Bouley who lives in Washington State, right on the 0:16:33.680 --> 0:16:36.680 US Canadian border, and he operates a little bit and 0:16:36.760 --> 0:16:40.960 Breakfast there that he famously called smugglers in and not 0:16:41.040 --> 0:16:44.720 surprisingly that got the attention of the Border patrol, which 0:16:44.800 --> 0:16:47.240 was watching him and working with him. Over the years. 0:16:47.280 --> 0:16:50.400 He in fact claimed to be cooperating with him, as 0:16:50.440 --> 0:16:53.000 some of his guests would be turned into border patrol, 0:16:53.280 --> 0:16:56.800 and on one occasion he notified the border patrol that 0:16:56.840 --> 0:17:01.280 he had a visitor coming. Border Patrol agent Egbert Eric 0:17:01.320 --> 0:17:05.320 Egbert responded pulled the guests out of the van as 0:17:05.320 --> 0:17:08.320 he pulled up, and Bully came out and let's just say, 0:17:08.359 --> 0:17:13.399 invited the agents to leave private property. According to his 0:17:13.440 --> 0:17:17.320 complaint filed in the federal court against the agent, the 0:17:17.400 --> 0:17:21.360 agent didn't like this and wound up throwing Boulet onto 0:17:21.400 --> 0:17:26.200 the ground, assaulted him, used excessive force, and then secondly, 0:17:26.800 --> 0:17:30.679 um when bull A complained to the Border Patrol about 0:17:30.720 --> 0:17:33.800 this behavior, which he had a right to do, the 0:17:33.880 --> 0:17:38.760 agent retaliated by sticking the I R s on him 0:17:39.400 --> 0:17:43.600 and seeing that other governmental actions occurred unfavorably, so he 0:17:43.760 --> 0:17:47.800 then was sued in federal court the agent individually and 0:17:47.960 --> 0:17:53.400 what's called it Bivens action, and that's a Supreme Court 0:17:53.480 --> 0:17:56.199 case where the the court said that I've done a 0:17:56.280 --> 0:18:01.240 federal agent in this case narcotics agents viole someone's Constitutional 0:18:01.320 --> 0:18:05.840 rights Fourth Amendments, specifically that they could sue the agent 0:18:05.920 --> 0:18:11.159 in federal court for damages. And that's what Egbert did. Um. 0:18:11.280 --> 0:18:14.000 It went to the Ninth Circuit. The Ninth Circuit upheld 0:18:14.040 --> 0:18:16.879 both of those causes of action. And remember, a cause 0:18:16.880 --> 0:18:19.119 of action is simply a right to sue someone in 0:18:19.200 --> 0:18:23.560 federal court. Um. The issue in the Supreme Court was, um, 0:18:23.840 --> 0:18:27.480 was the were the courts below right in implying i e. 0:18:27.600 --> 0:18:31.840 Allowing the plaintiff to proceed with a lawsuit for money damages? 0:18:32.160 --> 0:18:35.320 And the interesting thing is why this is a significant 0:18:35.359 --> 0:18:38.480 case is we have, as you know, a very conservative 0:18:38.560 --> 0:18:43.400 court which is strictly applying the words of the Constitution, 0:18:44.000 --> 0:18:48.240 and in the court is saying, look, it's up to Congress. 0:18:48.280 --> 0:18:51.560 It should be Congress's job to decide who has a 0:18:51.640 --> 0:18:54.560 valid claim to file a claim against the United States. 0:18:54.560 --> 0:18:58.280 Good example being a statute called the Federal Torque Claims Act, 0:18:58.359 --> 0:19:01.680 which allows people on over by mail trucks to sue 0:19:01.680 --> 0:19:05.760 the government for their damages. McCourt here said, Look, maybe 0:19:05.760 --> 0:19:09.320 Egbert did the wrong thing, but it's not up to 0:19:09.359 --> 0:19:11.920 the courts to decide who gets to follow the lawsuit. 0:19:11.960 --> 0:19:15.240 It's Congress's job, and Congress should weigh the costs and 0:19:15.280 --> 0:19:19.360 the benefit. And for that reason they threw the through 0:19:19.400 --> 0:19:21.080 the other plane of out of court thing. He had 0:19:21.119 --> 0:19:24.040 no claim in federal court against the agent. So it's 0:19:24.040 --> 0:19:27.440 an interesting constitutional issue, which is to say, win can 0:19:27.520 --> 0:19:32.080 accord imply a cause of action that is not expressly 0:19:32.160 --> 0:19:36.320 stated or delineated by some statute. Congress hasn't made this 0:19:36.400 --> 0:19:38.919 a specific of what we call right of action, and 0:19:38.960 --> 0:19:43.800 that's the issue. So George, when he filed this, his 0:19:43.960 --> 0:19:46.840 lawyers must have known that this was an uphill battle 0:19:46.880 --> 0:19:49.400 from the start, right because the Supreme Court has been 0:19:49.440 --> 0:19:55.320 limiting Bevan's actions. Yes, since nine one, the Supreme Court 0:19:55.359 --> 0:20:00.280 granted two other similar bivens suits, one involving an Eighth 0:20:00.320 --> 0:20:03.960 Amendment claim of by a prisoner um and another one 0:20:04.520 --> 0:20:06.760 on the Fifth amen a claim. But generally speaking, as 0:20:06.800 --> 0:20:10.480 the courts set forth, Justice Thomas in his opinion, you 0:20:10.520 --> 0:20:13.400 know eleven or twelve times where the Court has refused 0:20:13.400 --> 0:20:18.359 to extend bivens um. What's interesting is, of course, the 0:20:18.400 --> 0:20:21.800 plaintiffs said, this is a Bivins action. Bibbins involved a 0:20:21.880 --> 0:20:26.000 lawsuit against federal narcotics agents, the precursor to the d 0:20:26.080 --> 0:20:31.680 e A and for excessive force Fourth Amendment, and Bully said, 0:20:31.760 --> 0:20:34.840 I'm I'm bringing such a claim only differences against the 0:20:34.880 --> 0:20:38.000 Border Patrol, but still a federal law enforcement agent. So 0:20:38.480 --> 0:20:40.879 they felt, I think pretty confident. In the Ninth Circuit 0:20:40.920 --> 0:20:45.000 agreed this is a Bivns action. The Supreme Court in 0:20:45.040 --> 0:20:48.600 this case, however, said Nope, not a Byvin's action, and 0:20:49.080 --> 0:20:54.119 we decline to engage in judicial activism and create and 0:20:54.240 --> 0:20:56.240 implied cause of action for you, So that the first 0:20:56.320 --> 0:20:59.280 question the court dealt with is does this fall squarely 0:20:59.320 --> 0:21:02.800 within the parameters of Bibbons or is it an extension 0:21:02.800 --> 0:21:05.400 of Bibbons? And if it's an extension of Bivens, then 0:21:05.800 --> 0:21:08.680 the conclusion is a foregone certainty, which is you're out 0:21:08.680 --> 0:21:11.960 of court. So this was a six or three decision 0:21:12.000 --> 0:21:17.520 down audiological lines. In descent, Justice Sonia Sotomayor said, the 0:21:17.600 --> 0:21:22.399 court's ruling Contravenes precedent. Do you think that a Contravenes 0:21:22.480 --> 0:21:26.880 precedent should this case have been within the Bivens precedent. Well, 0:21:26.920 --> 0:21:30.320 it's far from me to criticize the United States Supreme Court, 0:21:30.560 --> 0:21:33.440 although I do from time to time. Her point, which 0:21:33.480 --> 0:21:36.720 is a good one, is on the first prong, which 0:21:36.800 --> 0:21:39.439 is is this a BIBBNS action. She said, yes, it is. 0:21:40.080 --> 0:21:44.240 She said, Okay, it's a different context because here it's 0:21:44.240 --> 0:21:47.520 a different agency, the Border Patrol, rather than federal and 0:21:47.560 --> 0:21:51.960 narcotics agents. But it's also a Fourth Amendment violation, allegedly 0:21:52.600 --> 0:21:56.520 for excessive force. And so she said, is squarely within 0:21:56.560 --> 0:22:00.000 the parameters the confines of bibbons um and what different 0:22:00.160 --> 0:22:04.879 doesn't make She asks, whether it's the Border Patrol ice, 0:22:05.680 --> 0:22:08.720 you know, d E. If it's a federal law enforcement agency, 0:22:08.800 --> 0:22:10.720 is should be all? And she of course pointed out 0:22:10.720 --> 0:22:15.560 there are eight three federal law enforcement agencies. It can't 0:22:15.560 --> 0:22:19.480 be that Bibbins is limited to only a federal narcotics agents. 0:22:19.520 --> 0:22:23.920 So she was right in pointing out that somewhat artificial distinction. 0:22:24.560 --> 0:22:27.880 But the second question, which is Court went to great 0:22:27.920 --> 0:22:32.480 length into Justice Corsage and his concurring opinion instead explicitly 0:22:33.160 --> 0:22:37.160 it's really time to overrule BIBBNS. Bibbons is not based 0:22:37.240 --> 0:22:41.800 upon words in the Constitution, a close or explicit reading 0:22:41.840 --> 0:22:45.119 would deny the Bibbins action, And he basically said or 0:22:45.160 --> 0:22:48.480 suggested in his concurring opinion that it's time to cut 0:22:48.480 --> 0:22:50.800 all the way instead of cutting back on bibbons, to 0:22:50.880 --> 0:22:52.840 cut it out, and this, of course is what the 0:22:52.880 --> 0:22:57.040 court is. There are people concerned about the abortion case 0:22:57.080 --> 0:22:59.919 that the Court is going to backtrack on established pre 0:23:00.040 --> 0:23:02.040 sent so they didn't do it here. So they didn't 0:23:02.040 --> 0:23:05.159 say bibbins is no longer the law. But what the 0:23:05.200 --> 0:23:09.240