Duty to Warn for Federal Parole Officers

Facts of the Case

Phillip Garrido had a history of sexual violence, particularly while under the influence of drugs. In 1976 he was charged with the kidnapping and rape of a woman in California. That same year, he kidnapped another woman, drove her across state lines, hid her in a shed and raped her. He was convicted of federal kidnapping, and in 1977 was sentenced to 50 years in prison. In court, Mr. Garrido admitted that while under the influence of drugs, he experienced violent, uncontrollable sexual urges.

Mr. Garrido was released in 1988 on federal parole. The court mandated drug testing as a condition of his parole. Parole officers were aware that Mr. Garrido was capable of “great physical harm” should he resume drug use. In the 30 months after his release from prison, he had approximately 70 violations of the imposed conditions on drug use and monitoring. None of these violations was reported by his parole officers to the Parole Commission.

In 1991, Mr. Garrido and his wife kidnapped 11-year-old Jaycee Dugard and held her captive for the next 18 years in a shed in their backyard. During that time, Mr. Garrido, often under the influence of drugs, repeatedly drugged and raped Ms. Dugard. Over the course of her captivity, Ms. Dugard gave birth to two of Mr. Garrido's children. Ms. Dugard and her children were held captive in Mr. Garrido's shed until they were discovered and freed in 2009.

After receiving a cash settlement from the State of California for negligence, Ms. Dugard filed a complaint in federal district court on behalf of herself and her two children under the FTCA. She claimed the parole officers' failure to report Mr. Garrido's many violations amounted to negligence. Ms. Dugard alleged that such reporting would have led to revocation of Mr. Garrido's parole and directly prevented her kidnapping and confinement.

The federal government filed a motion to dismiss the matter, stating that private individuals and entities under California law would not be held liable in like circumstances. Therefore, the federal government argued they should not be found liable here. The federal district court ruled that private criminal rehabilitation programs serve as a proper comparison for immunity in such cases. Explaining the limited liability of such programs under California law, the district court granted the government's motion for dismissal under the FTCA.

Ruling and Reasoning

The Ninth Circuit Court of Appeals affirmed the federal district court's ruling. The court noted, as the lower court did, that the FTCA renders the United States liable for its agents' actions only in situations when analogous private parties would also be held liable under state law. Hence, both courts' rulings hinged on identifying similar cases involving the most analogous private entity to the federal parole officers in this instance. The appellate court agreed with the federal district court in that the most comparable private party in this case would be private criminal rehabilitation programs.

In its majority ruling, the court cited multiple cases to establish liability standards. In Cardenas v. Eggleston Youth Center, 238 Cal. Rptr. 251 (Cal. Ct. App. 1987), the court of appeals held that a private rehabilitation facility has no duty of care to the community for conduct of persons under its supervision. Also, in Beauchene v. Synanon Foundation Inc., 151 Cal. Rptr. 796 (Cal. Ct. App. 1979), the court held that a private rehabilitation facility owed a duty only to foreseeable and specifically identifiable victims.

The court indicated that decisions regarding liability and duty are a product of all relevant policy and safety interests. Extending governmental immunity to private criminal rehabilitation programs in California emerged from a public policy interest in promoting the development of such programs.

The majority acknowledged that the release of criminals confers some level of risk to the public. Outside of instances that involve a specifically foreseeable and identifiable victim, however, a duty to warn and protect responsibility placed on these programs would undermine rehabilitative efforts, including job training and education. Programs would instead be forced to become more restrictive and punitive, and the increase in public safety would be unjustifiably small. The court resolved that the only way to completely ensure public safety would be to abandon rehabilitation programs completely. Hence, some risk to public safety must be tolerated if criminal release and rehabilitation is to be pursued. The majority argued that this balance of public policy and safety interests applies to federal parole and probation officers.

Thus, the appellate court affirmed the lower court's decision finding that the FTCA and California law do not allow for recovery for Ms. Dugard based on the failure of the parole officers to report Mr. Garrido's violations. Had she been able to establish that she was a specifically identifiable victim, she would have established a cause of action, analogous to a private person under California law and the FTCA.

Dissent

The dissent found the majority's comparison of the federal parole officers to private criminal rehabilitation programs inappropriate. Judge Smith agreed that both federal parole and private criminal rehabilitation programs manage the release of incarcerated individuals and their transition back to society. He additionally conceded that public policy interests support the immunity granted to private and public criminal rehabilitation programs. However, he argued that no such policy is applicable to federal probation and parole programs. He stated that probation and parole officers are required to report on the behavior of their supervisees and that this obligation does not prevent the release of prisoners. Federal district judges, not parole or probation officers, determine when prisoners are released. Accordingly, the imposition of mandated reporting requirements on parole officers would have no impact on the operation and success of private rehabilitation programs.

The dissent highlighted a handful of cases regarding duty to warn and duty to protect. In Poncher v. Brackett, 55 Cal. Rptr. 59 (Cal. Ct. App. 1966), grandparents were found to have a duty to the previously unidentifiable victim of their violent grandson. In Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976), the court opined that a therapist had a duty to use reasonable care to protect the target of a patient's threats. Similarly, in Myers v. Quesenberry, 193 Cal. Rptr. 733 (Cal. Ct. App. 1983), a physician failing to warn an uncontrolled diabetic patient not to drive was found to have a duty to the previously unidentifiable victim of a subsequent car crash.

Although these cases were diverse, they all included medical professionals, and others considered to have “special relationships.” Judge Smith outlined “the general rule under California tort law that, where there is a special relationship, there is a duty to warn or control that extends to foreseeable, but not readily identifiable victims, provided that the action required would be reasonable and not futile.” (Dugard, p 922–23). He said that when this rule is applied to federal parole officers, they were negligent in carrying out their mandated duties. He further stated that the immunity granted to private rehabilitation centers should be considered an exception to the rule.