Jaycee Dugard v. United States

I. FACTS AND PROCEDURAL HISTORY

A. Garrido’s Criminal History, Convictions, and Kidnapping of Dugard

The sickening circumstances of this case have been detailed many times in various forms, so we limit our discussion to the essential facts.

Garrido’s predatory pattern of sexual abuse, often in conjunction with drug use, began in the 1970s. In 1972, he was arrested, though not convicted, for drugging and raping a juvenile. He was using LSD and marijuana during this time. In 1976, Garrido was charged with kidnapping and raping a woman in South Lake Tahoe, California.

DUGARD V. UNITED STATES

That same year, Garrido kidnapped a second woman in South Lake Tahoe, California, and drove her into Nevada, where he hid her in a shed and raped her. He was charged in federal court with kidnapping, and was convicted and sentenced to 50 years imprisonment in 1977. During his trial, Garrido testified and explained that, while under the influence of drugs, he had uncontrollable deviant and violent sexual compulsions. In 1988, he was released on federal parole. His federal parole was set to expire in March 1999, after which the State of California would take…

Dissent by Judge SMITH

*917 OPINION

Phillip Garrido, a parolee with a terrible history of drug-fueled sexual violence, committed unspeakable crimes against Jaycee Dugard for 18 years. State and federal authorities missed many opportunities to stop these tragic events. Ms. Du-gard received a large cash settlement from the State of California for its incompetence, and seeks similar compensation from the Federal Government.

While our hearts are with Ms. Dugard, the law is not. 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. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

I. FACTS AND PROCEDURAL HISTORY

A. Garrido’s Criminal History, Convictions, and Kidnapping of Du-gard

The sickening circumstances of this case have been detailed many times in various forms, so we limit our discussion to the essential facts.

Garrido’s predatory pattern of sexual abuse, often in conjunction with drug use, began in the 1970s. In 1972, he was arrested, though not convicted, for drugging and raping a juvenile. He was using…

dissenting:

As the majority states, our hearts are with Ms. Dugard. 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.

The majority’s decision turns on its understanding that the most analogous California cases for the purposes of determining liability under the Federal Tort Claims Act (“FTCA”) are those involving private rehabilitation centers. In my view, this is an incorrect application of the FTCA and misinterprets the body of California tort law of which the so-called private rehabilitation center cases are an inextricable part.

As the majority notes, the FTCA is a limited waiver of sovereign immunity and provides that the United States is liable for the negligent conduct of its employees “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674 ; see also 28 U.S.C. § 1346 (b). When…