Jaycee Dugard Has Judges’ Hearts, but not the Law’s

     PASADENA, Calif. (CN) — Five months after handing defeat to Jaycee Dugard — the woman held captive in a shed for 18 years by a man on parole — the Ninth Circuit said Friday that the U.S. government is not liable for incompetent parole officers.
     The Ninth Circuit actually shot down Dugard’s appeal 2-1 with an unpublished opinion in March. That initial ruling clocked in with four stingy paragraphs, but the 14-pager today offers more compassion for the kidnapping victim.
     Dugard was just 11 years old when Phillip Garrido and his wife abducted her from South Lake Tahoe, Calif., in 1991.
     It was the third time Garrido had kidnapped someone from the same area, and he was still on parole for those very crimes at the time of Dugard’s disappearance.
     Dugard spent 18 years in captivity, drugged and raped repeatedly by a methamphetamine-fueled Garrido. By the time rescuers finally found Duggard in 2009, she had given birth to two daughters.
     “While our hearts are with Ms. Dugard, the law is not,” today’s 14-page ruling says.
     Dugard settled her claims against California for $20 million, but she also sought to hold liable the United States for its supervision of Garrido’s parole.
     A federal judge ruled for the government at summary judgment, and the Ninth Circuit affirmed.
     “We agree with the district court that the Federal Tort Claims Act and its interaction with California law precludes her recovery for the incompetence of the parole office that was supposedly supervising Garrido,” U.S. Circuit Judge John Owens wrote for the majority Friday.
     The ruling calls parolee crime a regrettable but inevitable fact of life for which the government cannot be held liable.
     “‘Each member of the general public who chances to come into contact with a parolee or probationer must risk that the rehabilitative effort will fail,’ Owens wrote, quoting precedent from 1979.
     “Despite this increased danger, rehabilitation is an endeavor the State of California values,” the ruling continues. “Unless we adopt a ‘throw away the key’ approach to convicts, tragic crimes by parolees and probationers inevitably will occur. No judge wants to deny Dugard relief, but the FTCA, through the lens of California law and its focus on rehabilitative efforts, does not permit relief under the circumstances here.”
     The dissent came Friday, as it did in March, from Chief U.S. District Judge William Smith, sitting on the panel from designation from Rhode Island.
     “As the majority states, our hearts are with Ms. Dugard,” Smith wrote. “But for the incompetence of both California and federal officials, the unspeakable crimes committed by Garrido would never have occurred. Ms. Dugard has been compensated by California; and in my view she should have her day in court against the federal government as well. I differ with the majority’s conclusion that the law does not allow her this, and therefore I respectfully dissent.”
     Smith’s 29-page opinion otherwise mirrors his words in the March dissent.
     “Here, the policy considerations undergirding the rehabilitation center exception cases are plainly not present, and the warning/control that plaintiff claims should have been made both would likely have been effective and would have promoted exactly the behavior that tort law is meant to promote: greater care, vigilance, and concern for the safety of foreseeable victims,” both dissents state.
     Jonathan Steinsapir represented Dugard for the Santa Monica, Calif., firm Kinsella Weitzman Iser Kump & Aldisert.
     “We are happy that the court granted our motion to publish the disposition, but we are obviously disappointed with the result,” Steinsapir said in an email. “We believe that the dissent more accurately reflects the state of the law in this area, and we intend to ask for rehearing, including a renewed request that the Ninth Circuit certify these unsettled issues of California law — upon which there was substantial disagreement between the three federal judges on this appeal — to the California Supreme Court for resolution.”
     The Justice Department’s Patrick Nemeroff represented the government.
     Nemeroff and the Department of Justice declined to comment.
     Garrido is now serving a 431-year sentence. His wife 36 years to life.
     When Garrido was on parole for his prior kidnappings, he was supposed to have been required to abstain from alcohol and drugs, and monitored with regular testing.
     “Medical professionals described him as ‘a time bomb’ and ‘like a pot boiling with no outlet valve,'” the lead opinion today says.
     Garrido racked up roughly 70 drug-related parole violations in the 30 months after his release. They would have returned him to prison, but parole officers failed to report any of them.

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