Imagine you’re a small business owner, and one of your employees ends up needing to be a DEA informant. His handlers entice him to take one of your company trucks, fill it with weed, and haul it back to a place where they can bust the buyers.
Bad shit happens. Your driver is killed, and your truck basically destroyed in a gun battle with Mexican gangsters.
I wouldn’t even be blogging this if the next step weren’t obvious, but: clearly the DEA is refusing to take responsibility for the truck or the death, and a judge has backed them.
The government argued that it is neither culpable for the damage nor under any obligation to inform the owner of any property that it wishes to use in its operations, because “clandestine.”
No statute, regulation, or policy “specifically prescribe[d]” or prohibited the course of action Patty alleges the DEA agents followed. The DEA derives its authority from the Controlled Substances Act, 21 U.S.C. § 801, its implementing regulations, and various executive orders…
In this case, Task Force Officer Villasana submitted a similar declaration. He states that the DEA’s decision “to proceed with such an operation is entirely discretionary, and not mandated by any statute, rule, or policy.” Whether and how to conduct such an undercover investigation and operation is “necessarily discretionary in nature.” Villasana did not try to give advance notice to Patty that the Task Force would be using his truck because of operation’s covert nature, the risks of injury and potential for damage if something went wrong, and the uncertainty about whether other individuals (including Patty) could be trusted.
The business owner’s attorney summarized it thusly:
A federally deputized corporal from the Houston Police Department decides to pay your small company’s driver to drive your truck to the Mexican border, load it up with illegal drugs, and try to catch some bad guys. He knows that the driver is lying to “the owner” – although he doesn’t know your name or identity and doesn’t bother to find out. The bad guys outwit the cops. Your company’s driver is killed. Your truck is riddled with bullet holes.
Query: is our federal government liable to pay for the damages to you and your property?
The DEA and the court have taken the position, apparently, that the government can come and take your stuff, fuck it up, and bear no responsibility afterwards if they say “clandestine operation” enough. You’d think the Takings Clause would have something to say about this, you know?