In a motion to dismiss a lawsuit filed by parents and fellow agent of slain ICE Special Agent Jaime J. Zapata, the Department of Justice is relying on case law from the dismissal of a lawsuit that followed the torture and killing of DEA agent Enrique "Kiki" Camarena.
In 2011, ICE special agent Jaime J. Zapata was murdered by drug cartel members in Mexico after being ordered to travel a dangerous highway with ICE special agent Victor Avila, who was seriously injured and suffered multiple gunshot wounds.
His parents and Avila have filed a civil lawsuit against the government and several other defendants alleging a federal tort claim, which includes allegations of negligence and intentional infliction of emotional distress.
The Zapata family's lawsuit demands $75 million over allegations that the U.S. government is inflicting emotional distress on the Zapata family and agent Avila by refusing to explain why the men were sent on the fatal mission in 2011.
To fight the lawsuit, the federal government is calling upon case law established by a lawsuit filed by an acquitted suspect in Camarena's death.
In 1985, Enrique "Kiki" Camarena was kidnapped, tortured and murdered in Mexico. A huge investigation in Mexico netted many arrests, including that of Dr. Humberto Alvarez-Machain. In 1990, Alvarez-Machain stood trial in Los Angeles for his alleged role in the plot to murder Camarena, specifically for claims the doctor kept the agent alive for further torture.
Alvarez-Machain was acquitted and sent back to Mexico. He then filed a federal tort claim against the United States alleging false arrest and imprisonment.
The suit went up to the U.S. Supreme Court, where it was dismissed in 2004 because of a foreign-country exception that bars federal tort claims based on any injury suffered in a foreign country, according to the DOJ's motion to dismiss the lawsuit brought by Zapata's parents and Avila.
"A federal grand jury had indicted Mexican physician Humberto Alvarez-Machain for the torture and murder of a Drug Enforcement Administration agent in Mexico. The DEA hired Mexican nationals to seize Alvarez from his house in Mexico and bring him to the United States to stand trial," the motion to dismiss states. "Alvarez later brought an FTCA (Federal Tort Claims Act) action against the United States, seeking damages for false arrest. He argued that the FTCA exception did not bar his tort claim because his seizure was planned, arranged, financed, and monitored by United States officials acting in the United States."
But the Supreme Court dismissed the case "because the alleged harm occurred in Mexico."
The federal government is claiming the Zapata lawsuit is similar to the Alvarez-Machain claim that was dismissed because both occurred outside the jurisdiction of the Federal Tort Claims Act and the injuries and death in the Zapata lawsuit occurred in Mexico.
According to the motion to dismiss the Alvarez-Machain case, the Supreme Court ruled that the lower court rulings that the U.S. government was liable in Alvarez-Machain's lawsuit were wrong because they were "inconsistent with Congress' intent in enacting the foreign country exception."
The Supreme Court ruled that where the injury occurred was more important than where the orders derived from, according to the motion to dismiss.
"The plaintiffs in the case at issue allege that their harm occurred in Mexico (where) SA (Special Agent) Zapata was shot and killed, and SA Avila was shot and injured, 'along Mexico Highway 57 near Santa Maria del Rio, in the northern state of San Luis Potosi,'" the motion to dismiss states.
OTHER ARGUMENTS
Aside from the foreign country exemption, the motion to dismiss the Zapata case argues more federal tort exemptions backing up its lack-of-jurisdiction arguments.
The plaintiffs, however, disagree with the government's motion to dismiss, alleging Zapata's parents incurred injuries that happened inside the United States because that is where they are seeking answers and where they are not getting any answers, alleging a cover-up.
"For example, Plaintiffs have alleged a claim for intentional infliction of emotional distress based on injuries inflicted and suffered by Plaintiffs here in the United States. Specifically, the Third Amended Original Complaint states, that 'the United States has conducted an ongoing cover-up to deprive Avila and the Zapata family of the answers they rightly deserve,'" the motion in opposition states.
According to the Zapata family, this is causing them severe emotional distress.
"These allegations set forth a claim for damages based on conduct and injury that occurred within the United States, thereby precluding the applicability of the Foreign Country Exception (at least as to those claims)," the motion in opposition states. "It is also significant to note that none of the Plaintiffs lives in Mexico nor have any of the Plaintiffs other than Avila been in Mexico for any significant period in the last decade."
Additionally, Zapata's parents and Avila argue they continue to suffer injury in the United States.
"Accordingly, the concerns that the Foreign Country Exception was enacted to guard against are not present here," the motion in opposition states. "Plaintiffs have not brought any claims under the FTCA that would require the United States to submit to potential liability under the substantive laws of a foreign sovereign."
Rulings on the motion are pending in U.S. District Judge Andrew S. Hanen's court.
Copyright 2014 - The Brownsville Herald, Texas
McClatchy-Tribune News Service
