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Ninth Circuit Tosses Kidnapping Victim’s Case

(CN) - The federal government isn't liable for claims that it ignored parole violations of a rapist sentenced to 431 years for holding Jaycee Dugard captive for 18 years, the Ninth Circuit ruled.

When parolee Phillip Garrido kidnapped Dugard, then 11, in 1991, he drove her miles away to become his "private possession," in his mother's Antioch, Calif. home, Dugard claims.

Garrido "sequestered Jaycee in ragged sheds and tentlike structures in his back yard - removed from any semblance of normalcy and functioning society - where he raped Jaycee hundreds of times and over the course of many years," according to court records.

There, Dugard's two daughters, each fathered by Garrido, were born and raised, she says. Dugard made world headlines when she was found in 2009.

Garrido and his wife Nancy were sentenced in 2011 to 431 years to life in prison and 36 years to life, respectively, after pleading guilty to kidnapping and other charges.

Dugard then sued the government in Northern California Federal Court for not jailing Garrido decades prior.

After serving 11 years, mostly in Leavenworth, of a 50-year federal prison sentence for kidnapping and forcible rape, Garrido was released on parole in 1988, according to Dugard's lawsuit.

Though Garrido immediately violated the conditions of his parole, testing positive at least 30 times for alcohol - once nearly to the point of death - and drugs like methamphetamines and marijuana, his parole officers did not report him to send him back to prison, Dugard claims.

Plus, when Garrido's previous rape victim said he visited and threatened her, and even though he was not at work at the time, his officers allegedly ignored her concerns as "mere 'hysteria.'"

In fact, despite Garrido's counselor suggesting that he be placed on electronic monitoring, his parole officer said that would be "too much of a hassle," Dugard's complaint states.

Garrido's officers and therapists called him a "time bomb," and "substantial risk to women," according to the 25-page complaint.

Over the decade that Garrido was on parole, officers allegedly visited him less than 12 times.

Dugard asserted on behalf of her daughters and herself multiple negligence-related claims, including failure to conduct mental health examinations.

The court dismissed her claim under the Federal Tort Claims Act (FTCA). Dugard appealed, but the Ninth Circuit in Pasadena affirmed the lower court's ruling on Tuesday.

"As Dugard has not argued, and submits no facts to suggest, that she was a specifically identifiable victim, she would not have a viable claim against an analogous private person under California law," the unpublished ruling states. "Because a private individual in like circumstances would not be liable under California law, the United States cannot be held liable under the FTCA for the conduct of the parole officer here."

But Rhode Island's Chief U.S. District Judge William Smith, sitting by designation, dissented, rejecting the majority's finding that the most analogous cases are those involving private rehab centers.

"As many of the rehabilitation cases note, there is an inherent risk involved in paroling criminals, a risk that is considerably exacerbated by parole officers disregarding their responsibilities to the degree in which they were disregarded in this case," the unpublished, 29-page dissent states. "Mitigating the risk of danger associated with parole by holding parole officers responsible for carrying out mandatory tasks, makes it more likely-not less-that the public and government officials will support expansion of alternative rehabilitation programs. And imposing a duty on parole officers to conscientiously do their jobs has the added public policy benefit of protecting the public during the expansion of these programs."

Smith later added, "The warning/control that plaintiff claims should have been made would likely have been effective, and would promote exactly the behavior that principles of tort law are meant to promote: greater care, vigilance, and concern for the safety of foreseeable victims."

The dissent notes that the Sentencing Reform Act of 1984 limited the U.S. Parole Commission to only manage defendants paroled prior to that date, not after.

Justice Department spokeswoman Nicole Navas declined to comment on the ruling.

Dugard's attorneys did not immediately return emailed requests for comment Tuesday.

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