The FBI “Green-Lighted” the terror attack in Garland, TX, on May 3, 2015, alleges Bruce Joiner in his lawsuit against the United States of America.1

No we didn’t, and even if we did, its our discretion based on policy (or no policy), defends the Federal Bureau of Investigation, through its mouthpiece, the Department of Justice.2

Dear readers, you are sworn-in as jurors,3 and must review the facts and law for your decision. This story is long, but worth your time. Rationales will be explained via pleadings’ quotes: Complaint [C ¶] or Memorandum [M pg.]. At this story’s end, you can click-on links to PDFs of pleadings.

The Case’s Essential Questions

But for the FBI’s undercover agent [UCE-1] having “volunteered” to facilitate a “protest” [a code], and enlisted Simpson and Soofi, would there have been an attack of bullets, resulting in the security officer [Joiner] having been shot in his leg, and his incurring Post Traumatic Stress Disorder? Should Plaintiff [Joiner] get “$8 million in compensatory damages; Treble damages; [and] Any other relief the court deems appropriate”? [Complaint’s Prayer for Relief, pg. 38]4

Plaintiff’s Causes of Action

The Federal Tort Claims Act5 “allows citizens to sue for injuries that occur ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’” [C ¶ 62]

Under the Anti-Terrorism Act,6 “‘[a]ny national of the United States injured in his or her person […] by reason of an act of international terrorism […] may sue therefore […] and shall recover threefold the damages he or she sustains and the cost of the suit, including attorney’s fees.’” [C ¶ 77]

Respondeat Superior : Defendant / Employer is responsible for Employee’s actions.

Vicarious Liability : Defendant is responsible for third parties’ actions.

Civil Conspiracy : Defendant’s employees acted together with Jihadis.

Aiding and Abetting : Defendant’s employees’ provided assistance and encouragement.

The above incorporates Texas law in these Causes of Action:

Assault :7 Solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or fails to make a reasonable effort to prevent commission of the offense. [C ¶ 64]

International Terrorism :6 “The ATA also provides that ‘liability may be asserted as to any person who aids and abets, by knowingly providing substantial assistance, or who conspires with the person who committed such an act of international terrorism.’” [C ¶ 79]

Negligence : “In Texas, when law enforcement operations pose an unreasonable risk of injury, those injured as a result of this negligence may recover against the government.” [C ¶ 79]

Intentional Infliction of Emotional Distress : “In Texas, when a defendant intentionally or recklessly engages in extreme and outrageous conduct that causes severe emotional distress, the victim may recover damages against the defendant for the emotional distress.” [C ¶ 94]

U.S. Government’s Defense

U.S. law, based on English law, borrowed from the medieval era of the Devine Right of Kings: The Sovereign can do no wrong. Today, Sovereign Immunity is waived for government employees’ acts or omissions, which are usually violations of policy or procedure. Awards are usually limited to available insurance or monetary cap imposed by a legislature.

But there is a loophole to prevent waiver: Nothing would get done if bureaucrats are sued for every error. So we proudly announce the bureaucrats’ discretionary function!

“The Court lacks subject matter jurisdiction because this action is barred in its entirety by the discretionary function exception to the [Federal Tort Claims Act]. According to the Complaint, Plaintiff’s claims are based upon the conduct of the Federal Bureau of Investigation (“FBI”) in relation to individuals affiliated with ISIS during the course of an undercover investigation. FBI personnel have broad, policy-based discretion.” [M pg.1]

“Furthermore, under Texas law, a private person does not owe a legal duty to prevent a person from harming another, absent the existence of a special relationship.” [M pg.2]

“Plaintiff does not allege that UCE-1, or any FBI employee, ran afoul of any specific Federal statute, regulation, or agency policy relating to the conduct of an undercover operation. By failing to do so, Plaintiff has not carried his burden of pleading a cause of action that is facially outside of the discretionary function exception.” [M pg. 12]

“[T]he FBI has no mandatory policies relating to the operational details of conducting undercover national security investigations, including whether to use a particular investigative technique; how to communicate and interact with subjects of investigation and other individuals during the course of the investigation; whether and when to take overt law enforcement action, such as effecting an arrest; and the manner in which to share information with other government agencies.” [M pg. 12-13]

The FBI can not violate a policy or procedure because the FBI has none!

Summary of events leading up to the attack

“On May 3, 2015, the Plaintiff [Joiner] was injured when Elton Simpson and Nadir Soofi, two members of the international terrorist organization ISIS, attempted to carry out a mass-shooting terrorist attack on behalf of ISIS at the Curtis Culwell Center in Garland, Texas.” [C ¶ 1]

“An agent of the United States Federal Bureau of Investigation (“FBI”) solicited, encouraged, directed, and aided members of ISIS in planning and carrying out the May 3 attack.” [C ¶ 2]

“On January 7, 2015, Islamic terrorists gunned down twelve people at the office of the French satirical magazine Charlie Hebdo in retaliation for the magazine’s cartoon depictions of the prophet Muhammad. On January 17, 2015, an Islamic group held a conference titled “Stand with the Prophet in Honor and Respect,” which was aimed at Muslims who were frustrated with “Islamophobes” defaming “the Prophet.” Opposition to cartoon depictions of Muhammad was a central focus of the conference. The conference was held at the Curtis Culwell Center, a venue owned by the Garland Independent School District.” [C ¶ 21].

“The ‘Stand with the Prophet’ event drew criticism from Americans who felt that it was coming too soon on the heels of the Charlie Hebdo attack. Pamela Geller, a free speech activist, organized a large protest outside the event. Soon after, Ms. Geller announced that she would host a ‘Draw the Prophet’ competition at the same venue in May 2015.” [C ¶ 22].

“In March 2015, a South Carolina resident named Erick Jamal Hendricks began taking steps to form an ISIS cell inside the U.S., using social media to recruit members. His activities quickly drew the attention of federal law enforcement officers. On March 24, 2015, an undercover FBI agent (referred to by the FBI as ‘UCE-1’) contacted Hendricks on social media, posing as a Muslim who was interested in joining the ISIS cell.” [C ¶ 24].

“On April 23, 2015, Elton Simpson publically discussed the upcoming Garland event in a series of tweets with Mohamed Abdullahi Hassan, an influential ISIS member operating in Somalia. Simpson began the conversation by tagging Hassan in a tweet that stated ‘When will they ever learn? They are planning on selecting the best picture drawn of Rasulullah (saws) in Texas.’ Simpson’s tweet included a link to a Breitbart article about the ‘Garland Draw Mohammed’ event. Hassan retweeted Simpson’s tweet, and followed up with his own tweet linking to the Breitbart article and commented: ‘The brothers from the Charlie Hebdo attack did their part. Its time for brothers in the #US to do their part. Hassan then followed up by posting pictures of several jihadis, including the Paris kosher market shooter, Amedy Coulibaly, with the message: ‘If only we had men like these brothers in the #States, our beloved Muhammad would not have been drawn.’” [C ¶ 26].

“On that same day, Hendricks noticed Simpson’s tweets about the event in Garland. He contacted Simpson on Twitter and asked for Simpson’s contact information for another social media. account. Hendricks then told UCE-1 to contact Simpson to ‘validate’ Hendricks’ identity (Simpson had accused Henricks of being a spy) and to explain to Simpson that Hendricks and UCE-1 ‘have been connecting brothers.’” [C ¶ 27].

“The following day (April 24, 2015), ICE-1 and Simpson were again chatting over social media. Early in the conversation, the two men discussed the need to be careful when communicating online. Simpson made ‘multiple references to the presence of spies online.” [C ¶ 29].

“Later in that conversation, Simpson asked UCE-1, ‘Did u see that link I posted? About texas? Prob not.’ Simpson then shared a link about the upcoming “Draw Prophet Muhammad Contest’ in Garland, Texas. After Simpson shared the link, the conversation proceeded as follows [C ¶ 30]:

UCE-1: Tear-up Texas.

Simpson: Bro, u don’t have to say that… U know what happened in Paris… I think…

Yes or no…?

UCE-1: Right.

Simpson: So that goes without saying… No need to be direct.”

“After Simpson chastised UCE-1 for being too ‘direct’ in their communications, the two men continued with a discussion about the need to stay armed.” [C ¶ 31].

“The FBI stated that ‘a week’ before the Garland event took place (which would be April 26, 2015), Simpson’s name was included in a routine terrorism ‘bulletin’ that was sent to law enforcement agencies around the country, and that ‘[a]n assistant chief in Garland was on the FBI’s distribution list.’ The bulletin, however, contained little specific information about Simpson, and the FBI did not reach out directly to the Garland Police Department to warn them about the threat Simpson posed. The Garland police later said that ‘the FBI bulletin lacked details they could turn into action, and therefore it amounted to information rather than a warning.” [C ¶ 32].

The smoking gun

“[On] (May 2, 2015), Hendricks and UCE-1 again chatted online about the upcoming Garland event. Hendricks wrote, ‘I wish someone could go to tx and harass them during the night;’ ‘a good solid protest;’ and ‘Unique one man protest.’ After Hendricks explained that he was unable to go because he was on the no-fly list and it was ‘too much driving,’ UCE-1 then volunteered to go. UCE-1 then asked, ‘Just me or any other brothers?’ Hendricks responded, ‘See what you and bro [Simpson] can do,” and added that Simpson ‘has another brother he knows’ (presumably Soofi). Hendricks then provided ICE-1 with Simpson’s alternate Twitter contact.” [C ¶ 34].

“On May 3, 2015, the day of the Draw Muhammad contest, UCE-1 traveled to Garland to meet up with Simpson. That evening, Simpson, Soofi, and UCE-1 traveled together to the Curtis Culwell Center in two separate cars, with Simpson and Soofi in the lead car and UCE-1 following closely behind. Simpson and Soofi were wearing body armor, and were equipped with three assault rifles, three handguns, and 1,500 rounds of ammunition.” [C ¶ 35].

“Just before the event was set to begin, the FBI sent another email bulletin which contained ‘a list of suspected extremists who […] were interested in the event.’ The bulletin included information about ‘Simpson’s general interest’ in the event, along with a ‘photo and possible vehicle license plate,’ but it gave ‘no notice that he might be headed that way or planning an attack on the draw-Muhammad gathering.’ Former FBI Director James Comey would later claim that ‘[a]t the time, the FBI had no reason to believe that Simpson intended to attack the event.’ The Garland Police Department’s security operations for the event were already underway when the email bulletin was sent, and was ‘one of many emails sent [to the Department] on that day,” so “no one saw [the email] until after the attack.’ The numerous FBI agents on the ground at the event made no effort to alert local law enforcement officials that Simpson posed an imminent threat.” [C ¶ 36]

“After the event started, UCE-1 messaged Hendricks and told him that he was ‘in the vicinity.’ Hendricks responded, ‘If you see that pig [Geller] make your ‘voice’ heard against her,’ and then asked numerous questions about the size of the crowd, the building, security, and media presence. When UCE-1 texted Hendricks that there was not a lot of activity outside the center, Hendricks texted back that he should wait until the attendees were outside to attack. UCE-1’s last message stated ‘OK let me let u go n see how close I can get.” [C ¶ 37]

“UCE-1, Simpson, and Soofi then approached the entrance to the convention center’s rear parking lot in their vehicles. The Garland police had erected a barricade at that entrance, which was guarded by Garland police officer Gregory Stevens and the Plaintiff [Joiner]. The Plaintiff, who was ‘dressed in a law enforcement uniform but was unarmed,’ was at the checkpoint ‘to check the identification of those coming in. Former FBI Director Comey would later concede that the two officers were not ‘aware of the bulletin’ about Simpson and that the FBI sent shortly before the event started.” [C ¶ 38]

“As UCE-1, Simpson, and Soofi approached the entrance, UCE-1 snapped a photograph of the police barricade on his cell phone. Officer Stevens and the Plaintiff [Joiner] can be seen in the photograph. Seconds later, Simpson’s vehicle pulled up at the police barricade and stopped, and the Plaintiff ‘walked up to [the] suspicious car’ to check the passengers’ IDs. Simpson and Soofi then jumped out of their vehicle and opened fire on Officer Stevens and the Plaintiff.” [C ¶ 39]

“The Plaintiff ‘dove for cover, but was shot in the leg. Officer Greg Stevens returned fire with his handgun.’ Other law enforcement officers who were nearby quickly converged on the scene. ‘[B]oth terrorists [were] mortally wounded by Officer Stevens,’ and a SWAT team shot them both in the head’ to finish them off.” [C ¶ 40]

Your Opinion – Is the U.S. Government liable or not?

Meanwhile, the Court has ordered a Scheduling Conference. Parties must submit a Joint Proposed Scheduling Order, on or about Feb. 6, 2018.

Read the pleadings via these links. Here is a teaser: The Complaint alludes to the sale of a gun during the scandal of Fast and Furious.

Docket and Complaint [here]

https://1drv.ms/b/s!AjZrrq5OeHBgd_ELPJ2lU8aHDuE

Government’s Motion to Dismiss with Memorandum [here]

https://1drv.ms/b/s!AjZrrq5OeHBgeFC7PW6i2gUZ94g

Government’s Appendix Part I [here]

https://1drv.ms/b/s!AjZrrq5OeHBgedE4mfHg-mbIxYI

Government’s Appendix Part II [here]

https://1drv.ms/b/s!AjZrrq5OeHBgepolmCYRuzq16Xs

1 Joiner v. United States of America , Civil docket: 3:17-cv-02692-M, U.S. District Court for the Northern District of Texas (Dallas); Filed Oct. 2, 2017. This public record is online as a summary via dockets.justia.com , and accessible via pacer.gov . The latter will require the User’s account, and possible costs. See, Plaintiff’s Original Complaint [Docket #1]. Quotes omit footnotes.

2 See, Defendant United States of America’s Motion to Dismiss for Lack of Subject Matter Jurisdiction or, in the alternative, Failure to State a Claim [Docket #8]; and Memorandum in Support [Docket #9]; and Appendix in Support [Docket #10].

3 Plaintiff [Joiner] did not ask for a jury. It is a “bench trial:” Only the Judge will review the facts and law, and issue a decision. The presiding judge is the Hon. Barbara M.G. Lynn, appointed by U.S. President Bill Clinton.

4 Plaintiff [Joiner] asked for $25 million pre-suit. See, The U.S. Department of Justice, Federal Bureau of Investigation’s letter (04-05-17) to Plaintiff’s attorney. “Having concluded this [administrative] review, we have found no evidence of any negligent or wrongful act or omission of a federal employee acting within the scope of his or her employment in connection with this incident. Consequently, we have determined that your client’s claim is not compensable under provisions of the FTCA, and we must hereby deny the claim.” Reference to the Federal Tort Claims Act. [Complaint, Exhibit A].

5 The Federal Tort Claims Act, 28 U.S.C. §§2671, 74; and, §1346(b).

6 The Anti-Terrorism Act, 18 U.S.C. §§2333.

7 Texas Penal Code Ann. §7.02(2)-(3).

Gerald Lostutter is a Florida licensed attorney, college professor, and journalist. He has worked in the print and broadcast media. His comedy can be heard on cflradio.net . Under Sounds, click on AM, then scroll down to WDBO-AM 580, and WMEL-AM 920.

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