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Public Protection: Informants

     Monthly Law Journal Article: Public Protection: Informants, 2009 (5) AELE Mo. L. J. 101.

     After a teenage prostitute was found in possession of marijuana in her hotel room, she agreed to officers’ request that she serve as an informant. She called her drug dealer and ordered drugs. The officer arranging this planned to have other officers intercept the dealer before he arrived. The prostitute signed a confidential informant form, which provided that the “Department will use all reasonable means to protect your identity; however, this cannot be guaranteed.” The dealer’s car was stopped and the dealer and a passenger believed that the prostitute had set them up, especially as the officer stopping them told the passenger that he had ordered the drugs. The dealer and an accomplice later murdered her. The prostitute’s mother sued for failure to protect her daughter. A federal appeals court upheld a denial of qualified immunity to the officer who stopped the drug dealer’s car. A reasonable jury could find that the officer acted with deliberate indifference under the state-created danger doctrine when he essentially revealed to the passenger that the prostitute had set up the dealer. Nelson v. City of Madison Heights, #15-2441, 845 F.3d 695 (6th Cir. 2017).
     A man who had served as an informant to a detective was shot and killed outside a diner.. His estate sued, claiming that the county prosecutor's office and that office's former chief of detectives had improperly revealed to organized crime members his status as an informant, thereby constituting a state created danger that led to his death, in violation of his due process rights. The lawsuit also challenged a 2004 search of the decedent's home and the seizure of his property. The search and seizure claims were time barred, but a federal appeals court held that the lawsuit supported a reasonable inference that neither defendant had acted within the bounds of classical investigatory and prosecutorial function for purposes of the state created danger doctrine, so the trial court erred in viewing them as part of the state not amenable to liability. On remand, however, the trial court had to determine whether Eleventh Amendment immunity applied to the prosecutor's office. Estate of Lagano v. Bergen County Prosecutors, #13-3232, 769 F.3d 850 (3rd Cir. 2014).
     A woman claimed that police officers and the city were liable for the death of her son, an informant, who was murdered after police searched an apartment in response to his tip. New York law, the trial court correctly held, requires proof that a municipality owe a special duty to the injured person based on a special relationship in order for the plaintiff to recover. The plaintiff failed to show this. Velez v. City of New York, #12-1965, 2013 U.S. App. Lexis 19291 (2nd Cir.).
      Estate of FBI informant murdered by two organized crime figures was properly awarded $3.1 million in lawsuit against an FBI agent, the FBI, and others. The plaintiff alleged that the FBI agent caused the death by leaking the fact that the decedent was cooperating with authorities to the two organized crime figures, who themselves had been serving as informants. The appeals court rejected the argument that the FBI agent was a rogue agent who acted outside the scope of his employment and in violation of F.B.I. policies. McIntyre v. U.S., No. 07-1663, 2009 U.S. App. Lexis 21629 (1st Cir.).
      A deceased informant's widow and child claims that Oklahoma sheriffs, a U.S. Marshal and his deputies, and other defendants improperly failed to take all reasonable measures needed to ensure the informant's life. The informant died in a shootout that occurred while he was aiding a joint law enforcement task force in capturing a fugitive acquaintance. Federal civil rights claims against the defendant Marshal's deputies in their official capacities were allegedly not filed within the applicable statute of limitations and were therefore dismissed. Claims against the sheriffs were also dismissed, specifically claims based on an alleged state-created danger arising from their decision to engage in gunfire with the fugitive. Cutter v. Metro Fugitive Squad, a/k/a U.S. Marshals Metro Fugitive Task Force, No. Civ-06-1158, 2008 U.S. Dist. Lexis 66572 (W.D. Ok.).
     A man who was shot in the back while serving as a confidential informant for the federal government claimed that the government acted negligently in placing him in harm's way, and failed to provide him with promised protection. The court found that the federal government's decision to arrest a suspected drug-trafficking boss at a particular time fell within the "discretionary function" exception to the waiver of sovereign immunity in the Federal Tort Claims Act. The court also found that the duty of protection that the plaintiff claimed the government owed him after taking actions (the arrest) that could disclose his identity was also a "discretionary duty." The U.S. government was therefore entitled to immunity from the lawsuit. Shuler v. U.S.A., No. 06-5275, 2008 U.S. App. Lexis 14907 (D.C. Cir.).
     Man who claimed that he was improperly arrested on drug charges after he had agreed with the police department to act as a confidential informant and participate in drug buys could not pursue his federal civil rights lawsuit for damages when he failed to show that his conviction had previously been reversed. Combs v. City of Dallas, No. 06-11416, 2008 U.S. App. Lexis 15866 (Unpub. 5th Cir.).
     A participant in a police drug sting operation was approached on the street by a drug dealer who had been arrested and subsequently released on bail, and accused of aiding the police. The drug dealer then allegedly slashed his face, causing him serious injuries. In a lawsuit brought by the informant, the court ruled that his participation in the sting did not create a special relationship imposing a duty of protection, but that the allegation that the sting had been planned in a manner that caused the drug dealer to learn about his involvement could be the basis for liability on a "state-created danger" theory. In this case, that claim also failed, however. The officers' actions did not shock the conscience because they were intended to protect the safety of the officers as well as the participant's. Matican v. City of New York, No. 06-1983, 2008 U.S. App. Lexis 8724 (2nd Cir.).
     Police informant claimed that the officer who recruited him was present and involved in his shooting, and that the police department failed to adequately investigate the officer's role in that incident as part of hiding the officer's involvement in a drug enterprise. The trial court denied motions to dismiss claims for conspiracy and denial of equal protection for failure to investigate, while finding that the statute of limitations barred a claim for failure to protect the informant from the shooting. Rennick v. City of Cincinnati, No. 1:06-CV-00580, 2007 U.S. Dist. Lexis 56198 (S.D. Ohio).
     Police officers' alleged failure to protect a confidential informant against an assault by a drug dealer during a sting operation did not violate his due process rights. Their conduct did not "shock the conscience," and they were entitled to qualified immunity on his claims, as no prior case law clearly established a duty to protect him from private violence. Matican v. City of New York, No. 02-CV-5805, 424 F. Supp. 2d 497 (E.D.N.Y. 2006). [N/R]
     FBI agent could not be held liable for allegedly negligently revealing the identity of an informant to persons who might threaten him, when there was no showing of deliberate indifference towards the informant's safety. Coyne v. Cronin, No. 03-2357, 2004 U.S. App. Lexis 21178 (1st Cir.). [2004 LR Nov]
     Publication of newspaper article about murder of government informant did not provide his estate notice of a possible claim that the murder was caused by three FBI agents divulging the informant's identity to members of organized crime, so that the statute of limitations did not begin to run on the estate's federal civil rights claim. Trial court denies motion to dismiss lawsuit on the basis of statute of limitations, which did not begin to run until the plaintiffs knew or should have known, of both the death and the alleged factual cause of the death. Castucci v. United States, 311 F. Supp. 2d 184 (D. Mass. 2004). [N/R]
      Federal appeals court finds that police sergeant and city were not liable for death of informant, murdered by gang members after he cooperated by furnishing information about their involvement in a prior gang killing. Sergeant, city, and prosecutor provided assistance to help informant leave town until he had to testify, and could not have foreseen that he would choose to remain in town (or return there), only to be killed in retaliation for his actions. Gatlin v. Green, #02-3705, 2004 U.S. App. Lexis 4864 (8th Cir. 2004). [2004 LR Apr]
     In a lawsuit brought by the family of an man shot and killed by gang members after it was allegedly negligently revealed that he was an FBI informant, the right to bring the lawsuit under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671-2680, accrued at the latest on the date when family members attended hearings at which the relationship between FBI agents and gang members was revealed and widely reported in the media. Accordingly, the court holds that the lawsuit should be dismissed as time-barred under the applicable statute of limitations. McIntyre v. United States, 254 F. Supp. 2d 183 (D. Mass. 2003). [N/R]
     City and officer were not liable for gang slaying of informant who had provided information based on which an arrest for an earlier murder was made. Officer's action in failing to stop imprisoned murder suspect's letter, identifying the informant, from being mailed out may have been negligent but it did not violate the informant's constitutional rights. No evidence was present of an improper city policy or custom leading to the informant's killing. Gatlin v. Green, 227 F. Supp. 2d 1064 (D. Minn. 2002). [2003 LR Mar]
     338:27 UPDATE: Federal appeals court reduces jury award of $98 million for failure to protect informant from being murdered to $1.1 million, while upholding determination that officers should have constantly monitored informant as he faced dangerous situation in attempting to purchase crack cocaine; punitive damages were not available against D.C. and informant's mother had no constitutional claim based on loss of companionship of adult non-dependent son. Butera v. District of Columbia, No. 00-7008, 235 F.3d 637 (D.C. Cir. 2001).
     325:12 D.C. and four D.C. officers liable for $98 million for failure to protect informant from being murdered while going to purchase additional crack from house; lawsuit asserted that officers should have constantly monitored informant as he faced dangerous situation. Butera v. District of Columbia, 83 F.Supp. 2d 25 (D.D.C. 1999).
     315:46 Federal appeals court upholds award against City and officers of $2 million for releasing tapes of informant's calls to police to suspect in case under state open records law; lawsuit asserted that release of tapes led to informant's co-workers killing him. Monfils v. Taylor, #97- 2338 & 97-4179, 165 F.3d 511 (7th Cir. 1998), rehearing denied, 1999 U.S. App. Lexis 1411 (7th Cir.).
     310:157 State liable for $10.8 million to families of two informants who were murdered; court rules that law enforcement failed to provide promised protection. Liability upheld in Kubecka v. State of New York, 672 N.Y.S.2d 122, 1998 N.Y. App. Div. Lexis 4580. Damages awarded in Kubecka v. State of New York, New York Court of Claims, reported in The New York Times, National Edition, p. A15 (July 22, 1998).
     298:157 City and officers liable for $2 million for releasing tapes of informant's calls to police to suspect in case under state open records law; lawsuit asserted that release of tapes led to informant's co-workers killing him by placing him in a vat of paper pulp at workplace Monfils v. City of Green Bay, U.S. Dist. Ct., Milwaukee, Wis, reported in The Chicago Tribune, p. 10 (June 28, 1997).

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