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Judge Won’t Dismiss Parkland Victims’ Suit Against FBI
Posted on September 01, 2020

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By Carolina Bolado
Law360 (August 31, 2020, 8:27 PM EDT) — A Florida federal judge said Monday that the FBI must face a Federal Tort Claims Act suit filed by the families of students killed in the February 2018 shooting at Marjory Stoneman Douglas High School, ruling that the agency had a duty to the students to follow through on tips received about the shooter prior to the tragic event.

In a 44-page ruling, U.S. District Judge William P. Dimitrouleas refused to dismiss the consolidated suit against the FBI after determining that Florida negligence law imposes a duty of care on the FBI’s Public Access Line to follow up on tips received about the shooter Nikolas Cruz before he burst into his former high school in Parkland, Florida, and killed 17 people.

The judge said the FBI has a legal duty under the undertaking doctrine, which requires someone who helps another party in need to use reasonable care when doing so. The FBI set up the Public Access Line tip service and therefore had a duty to investigate these tips and take steps to protect others from reported threats.

At issue is a tip that came on Jan. 5, 2018, just over one month before the Valentine’s Day shooting. In the call, a person close to Cruz told the FBI that he would soon try to kill others and that he would likely target his former high school in Parkland. The caller also said the family Cruz was staying with let him have access to his guns.

But the FBI never documented the information from the caller and the tip never reached the FBI’s local field office in Miami, according to the order.

After the shooting, the FBI admitted that the PAL had failed to follow established protocols in handling the information.

Under the FTCA, the U.S. can face only those tort duties that would be imposed on a private person in similar circumstances. The FBI argued that Florida law would not impose liability on a private individual in a case like this, but Judge Dimitrouleas disagreed.

He said the plaintiffs had sufficiently alleged that the PAL had increased the risk of harm to the Parkland students because if not for the tip line, which was set up in 2012, callers would have been able to directly contact their local field office concerning threats to human life.

“And the FBI admitted in a public statement that had the FBI’s Miami-based agents received this information, they would have taken appropriate investigative steps,” the judge said. “At this stage of the litigation, the court finds that plaintiffs have alleged sufficient facts to satisfy the duty element under the Restatement (Second) of Torts §324(a) pursuant to Florida negligence law.”

Kristina Infante, who represents the parents of 14-year-old Jaime Guttenberg, who was killed in the attack, said now the parties can move on to full discovery and they can find out exactly what happened after the tip came in and why it was never investigated.

“It’s a big victory,” Infante said. “This was a significant hurdle in the case to get over, and it was a long time coming.”

She added that she and her team are proud of their work to help the Parkland families prevent future tragedies.

“Our goal has been to ensure that, in the future, known threats are investigated as required by government protocols,” Infante said.

Fred and Jennifer Guttenberg were the first to sue the FBI in November 2018 for failing to investigate tips about Cruz that could have prevented the shooting. Other families followed suit, and they filed a consolidated amended complaint in March.

A representative for the FBI declined to comment.

The plaintiffs are represented by Kristina M. Infante and Steven C. Marks of Podhurst Orseck PA, and Robert M. Stein and Jeffrey A. Tew of Rennert Vogel Mandler & Rodriguez PA.

The government is represented by Paul David Stern of the U.S. Department of Justice and Carlos Javier Raurell of the U.S. Attorney’s Office for the Southern District of Florida.

The case is Guttenberg et al. v. U.S., case number 0:18-cv-62758, in the U.S. District Court for the Southern District of Florida.

–Editing by Jack Karp.