FBI May Still Be Liable for Aiding Mob Murders

(CN) - The family of a man murdered by Whitey Bulger can seek damages from the government, which protected the mob boss for acting as its informant, a federal judge ruled.

James "Whitey" Bulger led the Boston-area Winter Hill Gang crime syndicate while giving the FBI information about rival gangs, including the Mafia. In return, the FBI protected Bulger and in some cases, even aided their criminal activities.

Michael Donahue and Brian Halloran were killed in 1982 after former FBI agent John Connolly Jr. told Bulger that Halloran was going to implicate him in a murder. Bulger and another member of the gang carried out the hit on Halloran, shooting him some 22 times as he screamed in pain. Donahue was an innocent bystander who merely happened to offer Halloran a ride home on the fateful night, and was shot in the head as he tried to dodge the spray of bullets.

A federal judge found in 2007 that the FBI was responsible for the deaths of Michael Donahue and Brian Halloran, and two years later a different judge awarded their families $8.4 million.

On appeal, however, the 1st Circuit found that the statute of limitations had lapsed and it voided the award.

"We are not without sympathy for the plaintiffs' plight ... But statutes of limitations are designed to operate mechanically," Judge Bruce Selya wrote for the court.

After this ruling, defendant Lawrence Sarhatt, former FBI Special-Agent-In-Charge in Boston, moved for final judgment on the claims against him.

U.S. District Judge William Young found Thursday that the 1st Circuit's decision does not bar Donohue from pursuing a Bivens claim, which takes its name from the 1971 Supreme Court decision, Bivens v. Six Unknown Named Federal Agents, which created a cause against federal employees for constitutional violations. Bivens claims have a three-year statute of limitations, unlike wrongful death claims, based on the Federal Torts Claims Act (FTCA).

"The individual defendant seeks to bar the pending Bivens claims - claims that were properly filed in the same suit," Young wrote. "There is no possibility of dual recovery. Moreover, in light of the facts that multiple district courts held the United States liable for Michael Donahue's death and two district judges were persuaded that the FTCA claims were timely, the Donahues' claims were undoubtedly not frivolous. To the extent that resources were 'wasted' here, they were wasted because the parties (and this court) agreed to stay the Bivens claims. The claims were not stayed, as Sarhatt seems to argue, because they would be barred regardless of the outcome of the FTCA claim. Rather, the stay of the Bivens claim was an attempt to avoid unnecessary litigation."

"Barring Bivens claims based on an untimely barred FTCA claim does seem patently absurd, both because the purpose of the FTCA was to permit suits against the government, and because the FTCA explicitly permits Bivens claims to be brought in the same suit," Young added.

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