SAN FRANCISCO – The 9th Circuit Court of Appeals ruled Aug. 26, the
U.S. government cannot be held responsible for the 1991 kidnapping of Jaycee
Dugard, who was held captive for 18 years.
A three-judge panel ruled that the Federal Tort Claims Act (FTCA) does not
allow Dugard to recover damages for the incompetence of the parole office that
supervised her kidnapper, federal parolee Phillip Garrido.
In a 2-1 vote, the panel said in the August ruling it is sympathetic to
Dugard’s ordeal, but added the FTCA and its application under California law precludes
her from recovering damages.
“Phillip Garrido, a parolee with a terrible history of drug-fueled sexual
violence, committed unspeakable crimes against Jaycee Dugard for 18 years,” Judge
John B. Owens wrote on behalf of the 9th Circuit Court of Appeals. “While our
hearts are with Ms. Dugard, the law is not.”
Under the FTCA, a limited waiver of
the United States’ sovereign immunity, it provides the U.S. government shall be
liable “in the same manner and to the same extent as a private individual under
like circumstances” under applicable state law.
The court wrote, “The most
analogous cases to this situation involve the liability of private criminal
rehabilitation facilities. Under California law, private companies that operate
rehabilitation programs do not owe a duty of care to the public at large for
the conduct of inmates or parolees under their supervision.” It added that
every member of the public who may encounter a parolee risks that that the
rehabilitative efforts will fail. In turn, the court ruled it was not
responsible for Garrido’s actions under the FTCA.
Chief U.S. District Judge William E. Smith dissented, writing, “As the majority
states, our hearts are with Ms. Dugard,” he wrote. “But for the incompetence of
both California and federal officials, the unspeakable crimes committed by
Garrido would have never occurred.”
with the court’s comparison of the government to a rehabilitation facility," Attorney Jonathan Steinsapir, Dugard's appellate attorney, told the Northern California Record.
argued it should be held liable to the same extent a doctor caring for a mental
patient would be liable. If the doctor’s negligence resulted in the release of
a patient who then killed someone, the doctor and institution are liable.”
Steinsapir said the reason the state settled and the federal government
didn’t is what he believes is attitude.
"When we filed the
administrative case against the state, it immediately approached us for
mediation and settlement, he said. "It owned up to the fact that it messed up. The state
could have done some things a lot better and didn’t. Had it done those things, Ms.
Dugard and her daughters would have been rescued sooner.”
The Inspector General of California issued a report around the time of the
settlement outlining what the state did wrong in its supervision of Garrido.
“While the state said it may have some immunity, it recognized this was an
extraordinary case and stepped up to the plate,” Steinsapir said.
“The conduct by the federal government was way worse than the state.”
The federal government had supervision of Garrido and failed
to report approximately 70 violations that would have sent him back to prison.
The state did not take over supervision until 1999, eight years after Dugard’s
Although the state admitted error and settled, the federal
government took the opposite approach.
“While the federal government is not
responsible for a completely evil person, they didn’t show interest in any
settlement discussion,” Steinsapir said. “They were extremely aggressive in
litigating the case. They were aggressive at depositions, cross-examining [Dugard
and her children] about the extent of their injuries and the scope of the
trauma they suffered. I don’t get that strategy. Let’s not talk about those injuries,
let’s talk about responsibility for why those injuries happened.”
“As citizen I find it disturbing. I would expect federal
government to step up a little more. The government should be held to higher
standards. It should have done what the state did and made it right.”
Steinsapir intends to file a request for rehearing en banc. A three-judge panel handed down the
ruling in August, and the request for rehearing asks the full court to hear the
case and decide together. The U.S. Court of Appeals for the 9th Circuit has 29
judges, but it is considered “en banc” with only 11 judges hearing a case. He
believes the culmination of the state admitting guilt, the dissent on record
and the unclear interpretation of the
FTCA under California law may help get the case back in front of all the
judges. If not, Steinsapir said, “We can consider the option of taking it to
the U.S. Supreme Court.”
The deadline to file the hearing request is Oct. 10.
On June 10, 1991, while Garrido was
on federal parole, Garrido and his wife kidnapped 11-year old Dugard near her
home in South Lake Tahoe. For the next 18 years, Garrido held Dugard
captive, sometimes in chains, in a shed that he built in his backyard. Dugard
gave birth to two of his children without any medical treatment or prenatal
care. Dugard and her children remained captive until their discovery Aug. 26,
Garrido was sentenced to 431 years to life in prison in 2011 after pleading
guilty to kidnapping and 13 sexual assault charges.
After filing an administrative complaint against the state for negligence in
its oversight of the parolee, the state of California paid Dugard a $20 million
settlement in 2010. State officials acknowledged parole agents responsible for
monitoring Garrido made repeated mistakes.
In September 2011, Dugard sued the federal government under the contending
Garrido’s parole officials could have prevented the abduction but failed to
report several violations committed by Garrido that would have resulted in parole
revocation and his return to prison before her kidnapping.
The complaint argues Garrido also tested positive for drugs and alcohol
while on parole, a violation for a sex offender, and ignored reports of sexual
misconduct, all which contributed to Garrido being able to abduct Dugard.
ruling summarized Garrido’s federal parole terms for multiple rapes and attacks
on women required him to undergo regular drug testing and counseling. It also prohibited
drug use and excessive alcohol consumption. It acknowledged that Garrido’s parole
officers recognized “the potential for causing great physical harm is present
if [Garrido] becomes unstable as a result of drug use.” Medical professionals
also described him as “a time bomb” and “like a pot boiling with no outlet
the face of these foretelling warnings and mandatory reporting requirements, parole
officers did not report nearly 70 violations in the course of more than two years
after his release from prison that would have sent him back to prison before
the court acknowledged the errors of the parole officers, it held under the
terms of the FTCA, a limited waiver of the government’s sovereign immunity, it
is only liable to the extent a private individual would be held liable in
similar circumstances under state law.