Neither the FBI nor the government is likely to be found legally liable in suits brought by the families of those killed in the Parkland School massacre, even though it has just admitted that it violated its own protocol in not forwarding a critical warning it received to the Miami field office for further investigation; a move a jury would likely find would have prevented the tragedy.
But a confusing legal doctrine related to duty is likely to protect the agency and the government from any monetary liability in the courts, says public interest law professor John Banzhaf, who has won many successful law suits, and teaches the subject at his law school.
It seems all too obvious that the FBI’s failure to follow up in any way on very clear evidence indicating a possible if not probable mass school shooting is negligence, says Banzhaf, suggesting that a jury would clearly agree.
The argument is further strengthened by the agency’s own admission that it failed to follow its own clear rules. In situations in which it is not clear that a jury would find that a behavior was negligence, a court will often instruct them to do so if the conduct violated the entity’s own rules. Thus a railroad engineer who deliberately exceeds speed limits established by a railroad will usually be found negligent, even if a jury cannot find for itself that the speed was dangerously excessive.
Moreover, despite sovereign immunity, the federal government can be held liable for negligence under the Federal Tort Claims Act, but not if the claim is “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” 28 U.S.C. Sec. 2680(a).
Here that would seem unlikely because the failure to forward the information wasn’t discretionary, since an existing FBI policy apparently removed the element of discretion.
As the Supreme Court held in the Berkovitz case, “[T]he discretionary function exception will not apply when a federal statute, regulation, or POLICY specifically prescribes a course of action for an employee to follow. . . the employee has no rightful option but to adhere to the directive.” [emphasis added]
Another important and perhaps crucial legal issue is how a court would decide whether or not the FBI had a legal duty to investigate reports of allegedly suspicious activities.
If an injury results not from an affirmative act (such as the FBI wrongfully arresting and/or shooting someone) but rather from its failure to act, there is no liability unless a court finds that there is a legal duty to act to protect the public. Many courts have found that no such legal duty exists for law enforcement agencies because a contrary ruling would open the doors too widely for a plethora of law suits.
However, in a recent case, the U.S. Supreme Court held that two American Indian families could sue based upon allegations that an FBI agent failed to properly investigate crimes against American Indians on and around a reservation. On the other hand, notes Banzhaf, that case involved a series (rather than only one) wrongful act, and claims of anti-Indian bias, two factors which do not appear to apply to the decision by the FBI not to investigate an individual report of suspicions in this situation.
Although many Americans may believe the the FBI is at least morally responsible for these preventable deaths and injuries, these feelings may not translate into legal liability, and a jury is not likely to ever hear the case, says Banzhaf.
