A Joint Proposed Scheduling Order (08-03-18) required amendments to pleadings, or additional parties joined, by 09-14-18; but this deadline is moot, and the lawsuit remains on-hold, about the ISIS terror attack in the United States: Two Muslims, Elton Simpson and Nadir Soofi, committed Jihad against a free speech event, AFDI’s Muhammad Art Exhibit and Contest (05-03-15), in Garland, Texas.
Judge Karen Gren Scholer’s decision, concerning the United States’ Motion to Dismiss, has yet to be filed in the case, despite the original target date (08-15-18). The Judge’s decision is expected at any time.
The Case’s Essential Questions
1. But for the FBI’s undercover agent [UCE-1] having “volunteered” to facilitate a “protest” [a code for murder], and enlisted Simpson and Soofi, would there have been an attack of bullets, resulting in the security officer [Bruce Joiner] having been shot in his leg, and his incurring Post Traumatic Stress Disorder?
2. 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]
Plaintiff’s Causes of Action
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: 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: “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
“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.” [Memorandum 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!
Denial of discovery pending a decision on the motion to dismiss
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.
“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].
Proposed Chronology of legal proceedings
“At the status conference held on April 18, 2018, the Court anticipated ruling on the pending motion to dismiss by August 15, 2018, and directed the parties to propose a Scheduling Order that is based on this anticipated date for ruling on the motion to dismiss and that will govern the case if the motion to dismiss is not granted,” wrote Judge Scholer in the Joint Proposed Scheduling Order, which “is as follows:”
- All amendments to the pleadings must be filed by September 14, 2018.
- All parties must be added or served, whether by amendment or third party practice, by September 14, 2018.
- The parties shall serve Rule 26 Disclosures by September 14, 2018.
- The parties shall designate experts on or before January 18, 2019.
- The parties shall designate rebuttal experts on or before April 15, 2019.
- The parties will complete fact discovery on or before March 15, 2019. All expert discovery is to be completed on or before May 17, 2019.
- For dispositive motions, on or before June 14, 2019. For non-dispositive motions, including objections to experts, on or before July 12, 2019.
- Proposed trial date is September 16, 2019, with an anticipated length of three (3) days for trial. A jury trial is not permitted in actions brought under the Federal Tort Claims Act.
Who would you trust for a decision in this case, a judge or jury?
As of this article’s posting, the Judge has yet to file a decision on the United States’ Motion to Dismiss.
If dismissal is granted, then the case ends, and the public will never learn details. Obama’s administration embraced the Muslim Brotherhood, and HAMAS-CAIR. Some of these Muslims’ advocates have been issued top secret security clearances. They have been privy to, and helped to write, policy and training for many federal agencies. You should read See Something, Say Nothing by Philip Haney, a Homeland Security Officer Exposes the Government’s Submission to Jihad.
If the Motion to Dismiss is denied, then the case continues with disclosure; However, there likely will be a delay of trial.
Remember, 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?
Yet, the government described as being “extremely general [in] nature” (i.e, innocuous) the conversation between the undercover FBI agent and a terrorist, as follows [Memorandum; p. 24]:
“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…?
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].
This case is another example of the Obama administration’s refusal to identify Islamists, but instead label the events being caused by “violent extremists;” or simply, generic criminals. As reported by Liberty One News: In Bruce Joiner’s “personal opinion, that involves factual evidence, [and] only one person is to blame for [this policy], former president Obama.”
We, the taxpayers, have a right to know details of our government’s submission to jihad via political correctness.
Review the lawsuit’s pleadings:
Gerald Lostutter is a Florida licensed attorney, college professor, and journalist. This article does not create an attorney-client relationship. You should consult a licensed attorney for advice.
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