DEA Not Liable for Truck Destroyed in Firefight

HOUSTON (CN) - The DEA is not liable for a businessman's truck that was "shot to smithereens" in a firefight between undercover agents and the Zeta drug cartel, a federal judge ruled.

Steven Patty said in a 2013 lawsuit that he had no idea Lawrence Chapa was a DEA informant when he hired him to drive for the trucking company Patty started with his father two years earlier.

After members of the Zeta drug cartel contacted Chapa and asked him to ship 1,800 pounds of marijuana from South Texas to Houston, Chapa told Fernando Villasana, a Houston policeman who works on a DEA task force, court documents say.

Villasana and the task force then made a plan to catch the Zetas using Patty's truck, but told Patty nothing about, not knowing if he could be trusted to keep quiet, according to a declaration Villasana submitted in the case.

Chapa picked the marijuana up in Rio Grande City on Nov. 21, 2011 and the DEA task force trailed him in undercover cars and planes as he drove it into Houston.

The plan was for Chapa to meet with the buyers, deliver the drugs, and then the task force would bust in and make arrests, Patty says in his lawsuit.

"On Monday afternoon, November 21, 2011, the truck was intercepted in northwest Houston by outlaws from the Zeta cartel, driving in three sport utility vehicles. An intense firefight ensued," the complaint states.

Patty says Chapa was shot eight times and killed and his red truck was Swiss cheesed with bullets.

Patty asked the DEA to pay for his truck's damage. Neither the DEA nor his insurer did, forcing him to use retirement funds and the ordeal hurt his business because the truck was out of service for 100 days, court documents say.

Patty filed an administrative claim asking the government for $1.4 million in damages in July 2013 and the Justice Department denied it a year later.

Patty then sued the U.S. government, the head of Houston's DEA office and 12 John Doe law enforcement officers for $5 million in punitive damages, before voluntarily dismissing all claims except those against the United States in May 2014.

In his second amended complaint Patty made four claims under the Federal Tort Claims Act: constitutional torts, negligence, conversion and abuse of process.

U.S. District Judge Lee Rosenthal dismissed the case on April 27, finding that the FTCA gives the federal government immunity against constitutional claims and the "discretionary function exception" bars Patty's negligence and conversion claims.

The exception hinges on a two-prong test: Whether the challenged actions involved "judgment or choice" and "governmental actions and decisions that included public policy considerations," Rosenthal wrote.

Rosenthal cited a declaration from Villasana in which the officer states the "DEA's decision 'to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.'"

Rosenthal was unmoved by Patty's claims that Villasana's actions violated DEA policy, citing a deposition in which the policeman testified there was no DEA policy that required him to get permission from an owner before using their property for a sting.

"The record evidence is clear that no formal policy, regulation, or statute required Villasana and the other Task Force members to secure Patty's consent before using his vehicle for the covert controlled drug delivery," the 26-page order states.

Rosenthal found that the DEA operation also met the second part of the test because it involved public policy considerations, namely the Controlled Substances Act, and the agency's mission to stop illegal drug trafficking.

Patty argued that Villasana's testimony showed he didn't consider public-policy issues because he didn't give any thought to getting Patty's permission to the use the truck. Rosenthal reached back to a 2010 decision by the 5th Circuit to unravel Patty's claims.

"The proper inquiry under prong two is not whether [the government actor] in fact engaged in a policy analysis when reaching his decision but instead whether his decision was 'susceptible to policy analysis'" the George H.W. Bush appointee wrote.

"Courts have consistently held that covert law-enforcement operations like the one at issue here are susceptible to policy analysis and covered by the discretionary function exception."

Rosenthal supported that statement with precedent from the 4th Circuit in Suter v. United States. In that case the appellate court affirmed a lower court ruling that the discretionary function exception barred the claims of victims of a Ponzi scam led by undercover FBI agents.

Rosenthal found the exception eclipsed Patty's negligence and conversion claims. She also shot down his abuse of process claim because he didn't prove that any of the agents had an ulterior motive in taking his property as required by Texas law.

Patty's attorney, Fred Shepherd of the Vickery Law Firm, said an appeal will be filed by the end of the week, if not sooner.

"We think the case was wrongly decided and the facts indicate the governent mistreated this man and improperly used his personal property and they need to make things right," he said.

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