THE BLOG
09/29/2016 04:04 pm ET Updated Dec 06, 2017

Victim Can't Sue Parole Officials Who Badly Supervised Abductor

A federal appeals court panel in San Francisco on August 26 issued an opinion rejecting an attempt by a kidnap victim to sue federal parole officials for negligently supervising her kidnapper, who was out on federal parole.

Jaycee Dugard was only 11 years old when she was kidnapped in 1991 near her home in South Lake Tahoe, California while walking home from school. Her abductor, Phillip Garrido, for 18 years kept her imprisoned in a shack on his property, often drugged and chained, and repeatedly raped her.

Finally, she was discovered in 2009, along with two daughters Garrido had fathered; none of the captives had received any medical or pre-natal care. Garrido eventually pled guilty to kidnapping and sexual assault charges.

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During Dugard's entire ordeal, Garrido - who had several past arrests on drug, kidnapping and rape charges, and in 1977 had been given a 50-year sentence on a federal kidnapping charge - was out on parole, supposedly being supervised by parole officers. When Garrido was first released in 1988, federal parole officers were supposedly doing that job; in 1999, state parole officials took over responsibility.

Neither set of parole officers can brag about their performance, however. The court record indicated federal parole officer found, but failed to report, over 70 separate drug and other parole violations by Garrido in his first few years outside. (California has already paid $20 million to settle negligence claims against its parole officers for a similarly poor performance.)
Suing the federal government under the Federal Tort Claims Act (FTCA), Dugard argued if parole officials had reported the violations as required by parole protocols, Garrido would have been sent back to prison and would not have been able to abduct and hold her captive.

Siding with an earlier summary dismissal of the case, by a 2-1 decision a panel of the 9th Circuit ruled against Dugard, holding her ineligible to bring a FTCA suit against the federal government for negligence by parole officers. The FTCA only allows claims against the federal government for negligence by its officials if state law allows lawsuits in similar cases., and the panel's majority reasoned, private criminal rehabilitation services were the most similar party.
Under California law, those services are not liable to the general public for negligence in controlling or warning about a dangerous person, but only to persons who had been specifically identified as potential victims. Since Dugard did not fit that definition, she lost.

The majority also argued public policy called for more lenient treatment of parole and rehabilitation programs in setting the balance between protecting the public and achieving rehabilitation, since exposure to tort liability might harm development of innovative programs

The decision drew a lengthy, vigorous dissent from a Rhode Island federal judge who sat in on the case. He faulted the majority's choice of state law cases, arguing the more apt comparison was with cases where persons (such as hospital) in charge of persons known to be dangerous have a duty to take reasonable care to protect and warn others of those dangers. Dugard's lawyer said he will seek a rehearing by the 9th Circuit, and ask it to send the question of the proper negligence test under state law to the California Supreme Court.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com