The lawsuit1 on the terror attack in Garland, Texas is on hold: a court order effectively denies disclosure to the plaintiff or the public.
The order (04-19-18), “granting USA / FBI’s Motion for Relief for Scheduling Report and Stay of Discovery,” 2 requires a decision by Hon. Karen Gren Scholer,3 on the Motion to Dismiss (GR: “FBI to Judge”) the Complaint (GR: “FBI ‘Green-Lighted’ Attack”).
There are ramifications:
- if the Motion to Dismiss is denied, then the case continues with disclosure; However,
- if the Motion to Dismiss is granted, then the case ends, and the public will never learn details.
Discovery could affect whether the case is dismissed
“Staying discovery in this action while the motion to dismiss is pending is more than simply appropriate – it is necessary to preserve the United States’ Sovereign Immunity,” alleges the USA / FBI in its Memorandum [p. 5]. “The burden of going through the painstaking process of reviewing such materials in response to a discovery request is, quite frankly, self-evident,” in its Reply. [p. 2].
“But insisting on a blanket stay of all discovery–when no good cause has been definitively demonstrated–goes too far. Defendant has not met its ‘heavy burden’ and demonstrated good cause to sidestep the general rule in favor of discovery … The purpose of pre-dismissal discovery is to find factual support for plaintiff’s argument that the conduct at issue is not discretionary, and thus not covered by the discretionary function exception,” according to Plaintiff’s Response [p. 6; 7, fn.1].
U.S. Taxpayers are owed explanations
Hypothetical: Entrapment is not a defense when the perpetrator was predisposed to commit the crime. However, consider: Is an undercover law enforcement officer considered a co-conspirator if his words originate the crime, and his acts contribute to the crime?
As the Complaint alleges:
“[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.” [¶ 34].
Assume the above is true and consider: But-for the FBI’s undercover agent effectively having “green-lighted” the attack, and offered himself to go and facilitate it, would there have been a jihad attack in Garland, Texas? If not, then Plaintiff – a security guard – would not have been shot, and suffer emotional distress.
The Judge granted a prohibition of discovery prior to a decision on USA / FBI’s Motion to Dismiss. That prohibition of evidence will negatively impact Plaintiff’s ability to substantiate the allegations.
Dear Judge: Please deny the motion to dismiss. USA / FBI owes explanations to many victims of the first ISIS-credited terrorist attack in the United States. Victims include: (a) Bruce Joiner, the security guard, shot; (b) Pamela Geller and Robert Spencer, of the American Freedom Defense Initiative, sponsors of the event; (c) Bosch Fawstin, winner of the contest, as well as hundreds of artists including this author; (d) hundreds of attendees at the event; and (e) U.S. taxpayers, who really do have a right to know. Justice delayed, or denied, is a travesty.
Gerald Lostutter is a Florida licensed attorney, college professor, and journalist. His cartoon, “Friday Night Jihad,” was featured on Breitbart.com.
1 Joiner v. United States of America, Civil docket: 3:17-cv-02692-S, U.S. District Court for the Northern District of Texas (Dallas); Filed Oct. 2, 2017. This public record is online via Pacer, which will require the User’s account, and possible costs.
2 The electronic order is listed, but not available for review, on the Court’s website.
3 Hon. Karen Gren Scholer, Judge of the U.S. District Court for the Northern District of Texas (Dallas). Judge Scholer was nominated (09-07-17) by President Trump. 95-0 was the vote (03-05-18) by the U.S. Senate. Scholer assumed office (03-06-18) and sworn-in (03-07-18). Read Scholer’s Questionnaire for Judicial Nominees. Watch Scholar’s testimony before the U.S. Senate’s Judiciary Committee. Scholer was nominated (03-15-16) by President Obama, but the nomination expired (01-03-17).
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