SAN FRANCISCO (CN) - The parents of the Border Patrol agent killed with a gun bought in the Fast and Furious gun-walking scandal pressed the Ninth Circuit on Thursday to revive their civil lawsuit.
Arguably the most visible failure of Operation Fast & Furious, Brian Terry's murder in December 2010 while on patrol near Rio Rico, Ariz., was one of several crime scenes where investigators recovered firearms that the Phoenix field office of the Bureau of Alcohol Tobacco and Firearms had let fall into criminal hands.
Rather than seizing the straw-bought firearms when it had the chance, the ATF had thought it could trace the guns into Mexico as a way to bring down drug cartels.
Terry's parents brought a federal complaint over the operation in 2012.
They said a speedy arrest would have intercepted the guns that killed Terry, but that Assistant U.S. Attorney Emory Hurley and six ATF agents blocked any law-enforcement action against the straw purchaser to give the ATF a chance to catch the weapons' transfer with a wiretap.
A federal judge dismissed the Terry family's complaint on lack of jurisdiction, however, citing the host of federal programs that offer benefits to the survivors of federal employees killed in the line of duty.
The couple's appeal landed Thursday in a third-floor courtroom of the Ninth Circuit in San Francisco.
Gallagher & Kennedy attorney Lincoln Combs urged the three-judge panel presiding over this morning's hearing to find that the Terrys still have a case under the 1971 decision Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.
Combs said Bivens actions are meant both to recover damages for an injured family and to also discourage the government from committing the violation that caused the injury.
"And that's the problem here," Combs said. "Without the Bivens remedy, there is no deterrence of the federal misconduct that is at issue in Fast and Furious and has been decried by Eric Holder and everyone else in federal law enforcement."
Judge Johnnie Rawlinson seemed unreceptive to the argument, calling it deterrent enough that Fast and Furious has faced harsh rebuke already from the former attorney general and other law-enforcement leaders.
Judge Andrew Hurwitz was similarly skeptical, asking Combs if every case going forward that involved a federal officer would be subject to punitive damages under Bivens.
Combs told Hurwitz that laws like the Administrative Procedures Act would limit the reach of his case, adding that courts must grant Bivens claims unless Congress has expressly forbidden those claims under the law.
"It's constitutional," Combs said. "If there's a constitutional violation, Bivens says the people that have had their rights violated need to have a forum to vindicate those claims. And a remedy."
Judge William Fletcher had Combs agree that a Bivens remedy would undoubtedly be appropriate if Terry was a private citizen and not a public employee.
Rawlinson's questions proved toughest for Combs, asking whether the flood of lawsuits a reversal for the Terrys might inspire would hamstring law enforcement.
"Wouldn't we be hampering law enforcement ingenuity by allowing Bivens actions against those who are charged with crime fighting?" Rawlinson asked.
Combs began to answer that qualified immunity could protect agents from some claims, but Rawlinson cut him off.
"That's not qualified immunity," she said. "It's will you hamper the ability of law enforcement agencies to come up with innovative strategies? This one was ill-conceived but not all of them are."
Rawlinson was concerned a reversal for the Terrys could make it difficult to find the line between cases worthy of a Bivens claim and those that are not.
The government's attorney Timothy Garren faced sharp question from the court as well, with the panel skeptical that their son's pension and other federal programs give the Terrys an adequate alternative to Bivens relief.
Fletcher in particular called the notion "preposterous."
"The fact that I as a federal employee have a pension into which I have paid deprives me of a cause of action that I otherwise would have against a federal defendant?" Fletcher asked. "That strikes me as crazy. Because I'm paying for the pension benefit."
But Garren insisted it was not an accident that Congress left out a mention of Bivens claims when crafting laws to deal with federal employees killed in the line of duty.
"It's comprehensive in scope," Garren said, referring to the congressional acts. "If it's comprehensive in scope that suggests it is no inadvertent omission. If it provides very substantial relief, as the programs do, that suggests that Congress did not anticipate that the courts would come behind it and provide additional relief."
But Fletcher again disagreed with Garren, a theme throughout the defense's turn at the podium.
"If a Bivens remedy would provide more money than those statutes collectively provide, what that means is the federal government has decided to treat its own employees that it puts into danger worse than private citizens," Fletcher said. "I have trouble concluding that the federal government would intend to do that."