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The Verde Independent | Cottonwood, Arizona

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11/19/2013 2:45:00 PM
Fast and Furious lawsuit dismissed

Howard Fischer
Capitol Media Services

PHOENIX -- A federal judge has tossed out a lawsuit filed against federal officials connected with the botched Fast and Furious program by the parents of slain Border Patrol Agent Brian Terry.

In an eight-page ruling, U.S. District Judge David Campbell said he recognizes that Terry's parents, Kent and Josephine, "have suffered a great loss, and that any financial remedy is likely insufficient to redress their injury.'

But Campbell pointed out that Congress approved several ways of dealing with federal agents who die in the line of duty, including the federal Public Safety Officers Benefits Act. And he said that means the only relief the family can get is what that law provides.

The attorney for the parents acknowledged that law. But he said that statute is inadequate because it provided no separate deterrence for government wrongdoing.

Campbell said that may be true. But he also said it's legally irrelevant.

"The compensation available under the PSOBA is intended to remedy precisely the harm that plaintiffs have suffered, namely the tragic death of their son,' Campbell wrote. "It is not the proper role of this court to second-guess the remedial action established by Congress, find it insufficient, and impose an additional judicially-crafted remedy.'

Robert Heyer, Terry's cousin, said Saturday the family learned about the ruling late Friday and are "very disappointed.' But he said the issue goes beyond the question of financial compensation.

"This was the family's effort to hold those responsible for Fast and Furious accountable,' Heyer said.

"Unfortunately, the judge did not look at any of the egregious behavior of the U.S. Attorney's Office,' he continued. "He merely looked at statutory procedures Congress had set up' in cases of the death of a federal agent, procedures Heyer said fail to recognize the difference between an officer killed in a motor vehicle accident and one, like Terry, shot to death because of what the family believes was negligence by federal officials.

The lawsuit is a direct outgrowth of Fast and Furious, a plan hatched by the Bureau of Alcohol, Tobacco, Firearms and Explosives to allow "straw' buyers for Mexican drug cartels to legally purchase firearms from Arizona dealers. The plan was to track the weapons to the cartels.

But ATF lost track of thousands of the weapons. And two of them turned up at the scene where Terry was shot in December 2010 in a firefight with drug runners near Rio Rico.

After filing a $25 million claim against ATF which was not settled, family members sued six managers and investigators for ATF as well as a federal prosecutor. The parents said the guns should have been intercepted before they could have been used.

Campbell acknowledged that the U.S. Supreme Court has recognized there is an implied right of action by individuals against federal officers who violate someone's constitutional rights.

But the judge said that right to sue has to be weighed against whether Congress has provided an alternate process for protecting that person's rights. And he said that is clearly the case here.

Campbell said there are specific benefits laid out under the Federal Employees Retirement System in cases of disability or death of a federal worker.

Similarly, the judge said that the Federal Employees Compensation Act establishes a "comprehensive and exclusive compensation scheme for federal employees.' And Campbell said PSOBA is specifically designed to provide benefits to survivors of federal and other law enforcement officers killed in the line of duty.

While acknowledging those laws, the parents argued they do not preclude a separate lawsuit where they can adjudicate their claims in a public forum, before a neutral arbiter. But Campbell said that does not matter since Congress "provided some relief that it considers adequate to remedy constitutional violations.'

"As the Supreme Court has made clear, the bedrock principle of separation of powers counsels against judicially-created remedies when Congress has established a remedial scheme,' Campbell wrote. "Congress has done so here.'

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