SAN FRANCISCO (CN) - The FBI is not liable for neglecting to forward a tip about a "Minutemen" militia that murdered a 9-year-old girl and her father in Arizona after invading their home, the Ninth Circuit ruled Wednesday.
Shawna Forde, founder of the Minutemen American Defense Group, led the attack on the Arivaca home of Raul Flores in 2009.
Forde and accomplices Jason Bush and Albert Gaxiola believed Flores was a smuggler and planned to steal his guns and money to fund their group.
During the home invasion in the small, rural town 11 miles from the Mexican border, the group killed Flores and his 9-year-old daughter Brisenia, shooting the girl in the face.
Gina M. Gonzalez, Brisenia's mother, was shot twice but survived. She shot one of the gunmen in the leg while on the phone with 911, an injury that eventually led to the group's capture.
Forde, Bush and Gaxiola were convicted for the murders in 2011. Forde and Bush are on death row in Arizona and Gaxiola is serving a life sentence.
In a federal lawsuit filed in 2012, Gonzalez claimed that Colorado FBI Agent Chris Anderson received a tip about the planned home invasion about two weeks before it took place, but failed to pass it on to local law enforcement.
Gonzalez argued in her Federal Tort Claims Act (FTCA) complaint that Anderson violated the bureau's operational guidelines, which state that agents "shall promptly transmit" information about "serious criminal activity not within the FBI's investigative jurisdiction" unless the information would spoil an ongoing investigation.
U.S. District Judge Jennifer Zipps dismissed the case in 2015, finding that the Anderson's actions fell under the FTCA's "discretionary function exception."
The federal appeals court in San Francisco affirmed 2-1 on Wednesday.
"It is tempting to wonder whether a simple warning to local law enforcement could have prevented the tragic deaths of Gonzalez's husband and daughter," Judge Jay Bybee wrote for the majority. "But we are not charged with passing upon the wisdom of the government's exercise of discretion, and the law does not permit us to do so, 'whether or not the discretion involved [is] abused.'" (Brackets in original.)
"Choices such as these - to disclose or not to disclose - are among the judgment-laden decisions the discretionary function exception was enacted to shield," Bybee added. "We decline to use the tort laws to monitor the executive's exercise of its judgment. "
Writing in dissent, Judge Marsha Berzon argued that the FBI had been negligent in failing to warn local police.
"If the government were deemed to exercise the kind of 'discretion' contemplated by the discretionary function exemption every time an employee is required to read and apply stipulated considerations that, if they exist, require that certain steps be taken, all, or nearly all, otherwise mandatory government policies would become discretionary," Berzon wrote.
"I would hold that the FBI's Guidelines here at issue are mandatory. The FTCA's discretionary function exception is therefore not applicable at all to Gonzalez's claim that the FBI negligently failed to disclose to local law enforcement threats that, under the agency's policies, should have been conveyed."
Berzon added that "the FTCA protects the public by helping to ensure the government is attentive to its own policies, and by allowing compensation for those injured by the government's negligence, where enunciated policies are not followed. In one sense, it is too late for Gina Gonzalez to benefit from the attentiveness the government should have paid to threats affecting her and her family, as her husband and child are lost to her. But her claim for compensation should go forward."
Gonzalez was represented by Thomas Cotter in Tucson. He did not return a request for comment on Wednesday.
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