Almost seven years ago, DEA agents borrowed a truck (and an employee) from Craig Thomas Expeditors. Craig Patty, proprietor and employer of Lawrence Chapa, had no idea this was happening. The DEA never approached Patty and, for all he knew, Chapa was taking the truck down to Houston for some service. This was all a ruse. The DEA loaded Patty’s truck with marijuana (and his driver) and went down to Houston to engage in a drug sting.
This wasn’t the first sting the DEA had deployed using Patty’s truck and his driver. But it was the last. Instead of a controlled purchase followed by several arrests, the DEA ran into an ambush instead. Patty’s truck was riddled with bullets, as was Patty’s driver. In the middle of it all, a plainclothes cop from one Texas agency was shot by a plainclothes cop employed by another.
After this debacle, Patty was finally informed that his truck and employee had been part of a tragic DEA misfire. He was also informed that the federal government would not be shelling out a single cent to repair the $ 100,000 worth of damage to the truck. (It said even less about the cost of the life it had taken from Patty’s driver.) The DEA said it did not have to pay anything for the damage because it occurred during a law enforcement operation. Patty’s insurance company said the same thing.
Patty sued the DEA. This went nowhere. The government argued — successfully — that clandestine operations like drug stings don’t require notification of citizens whose private property is put to use. It also argued it was immune from liability because undercover operations are more important than protecting assets owned by law-abiding citizens. The court agreed and tossed Patty’s case.
This appeared to be the end of it. But I’m happy to report that’s not the case. Nearly seven years has elapsed since the DEA destroyed Patty’s truck, but a federal judge for the Federal Claims court has said Patty can move ahead with his lawsuit seeking compensation for his “borrowed” truck. (via FourthAmendment.com)
The denial of the government’s motion to dismiss [PDF] is pretty weedy, but basically comes down to competing interpretations of Patty’s allegations. The government argued Patty’s complaint alleged illegal actions by the DEA, which would mean this court lacked jurisdiction over the case. The judge points out Patty’s complaint doesn’t actually do that. What Patty is alleging is something different: a violation of the Takings Clause. The government took property of Patty’s without permission and failed to compensate him for the damage done to it.
Defendant relies in part on the fact that plaintiffs assert that the agency’s use of their truck was without permission and an unjustified risk to private property and to the lives of those involved in the LLC. Pls.’ Compl. ¶ ¶ 2, 17, 18, 21. But an assertion of lack of consent to the use is not the same as an assertion of illegality. More importantly, it is not inconsistent with the assertion of a taking. Condemnation actions, whether direct or implied, typically are done over the property owner’s objection.
This changes the legal contours, much to the presumed dismay of the government. It’s no longer about apparent theft, but rather the government running roughshod over a citizen’s property rights. The government tried to argue it wasn’t a taking per se, but rather a form of forfeiture. It didn’t say as much in its arguments, but all of its supporting citations dealt with forfeitures in criminal cases or seized evidence. As the court points out, the supporting case law cited by the government does not address the issue at hand.
In each of these cases, the property was evidence in an investigation or the object of the law enforcement action. In none of them did the government simply seize property as a convenience to the government in pursuing unrelated law enforcement.
It then goes on to point out exactly why it won’t let the government get away with its false equation.
If defendant’s position is the law, the police power would swallow private property whole. Neither plaintiffs nor their truck were the subject of an investigation, their truck did not belong to a person who was the subject of an investigation, nor was it related, before the fact, to any violation of regulation or statute. Plaintiffs emphasize that neither the LCC nor Mr. Patty had any connection to or dealings with criminal outfits in the state of Texas and that, had it not been for their driver working with the DEA, their truck would have never been involved in the operation. The government instead chose to use plaintiffs’ property as a tool to stage a controlled drug delivery.
Then it goes further, calling out the government for its refusal to admit it screwed a law-abiding citizen out of $ 100,000+ worth of property — something the government has done repeatedly in the past and been held accountable for.
Plaintiffs’ claim bears striking similarities to cases in which the government has chosen simply to appropriate private property to secure a benefit for the public. Here, the assertion is that law enforcement officials used private property as a resource for an operation despite lack of consent of the property owner. Using the dichotomy of whether the government action prevented harm to the public or secured a benefit to the public, the government’s action falls within the latter category: it did not seize the truck to prevent a harm to the public caused by or related to the truck or anyone associated with it, but rather the agency chose to use the truck as a resource in ridding the area of controlled substances and criminal activity. It could just as easily have rented a truck and furnished it to Mr. Chapa. Plaintiffs’ truck was not evidence in a criminal prosecution, involved in a police investigation, seized pursuant to criminal laws, or subject to forfeiture proceedings. If what the DEA is alleged to have done here were not compensable, then presumably it could have seized a fleet of trucks or an airplane for the same use.
This moves Patty one step closer for being repaid for the DEA’s use of his vehicle. Sure, it’s not the DEA’s fault its drug sting fell apart and resulted in vehicle damage and the loss of life. But as the court points out, the DEA could have pursued a sting operation without using a private citizen’s vehicle. It had plenty of options that wouldn’t have put it in the position it’s in today. But it chose to do it the easy way, which is now — seven years after the fact — turning into the hard way. The DEA worked harder, not smarter. Hopefully, this business owner won’t remain screwed for much longer.
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