Northern California Record

Thursday, November 21, 2019

Court rules federal government not liable for kidnapping of Jaycee Dugard, lawyer plans to file request for rehearing

By Tara Mapes | Sep 16, 2016

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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.”

“We disagree with the court’s comparison of the government to a rehabilitation facility," Attorney Jonathan Steinsapir, Dugard's appellate attorney, told the Northern California Record. " We 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 abduction.

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, 2009.

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.

The 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 valve.”

In 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 Dugard’s abduction.

While 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.

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9th Circuit Appellate Court, San Francisco