Efforts to Hold Law Enforcement Accountable

the agency first received allegations against him. Here's Biles testifying at a Senate Judiciary Committee hearing in September in reviewing the O I G S report, It truly feels like the FBI turned a blind eye to us and went out of its way to help protect U. S A G and U S O PC. A message needs to be sent. If you allow a predator to harm children, the consequences will be swift and severe. Enough is enough.

I will close with one final thought. The scars of this horrific abuse continue to live with all of us. Joining me is Regina Calcatera of cal Katea Pollock, Regina. Did these gymnasts file a lawsuit here? It's not necessarily

a lawsuit that was filed. What was significantly filed were claims against the federal government under the Federal Tort Claims Act, and if there is a claim to be brought against the federal government, you first have to actually file a claim and fill up documents and submitted to the subtle agency for them to consider what it is that you're

asking for. So what the cases about is the gymnasts who were actually sexually assaulted by Larry Naster, the gymnast physician who was their position at M s U when they were training there and also for the Olympic team as well. He had been sexually molesting his students for

the athletes for over thirty years. And in July, Stephen Penny, the head of Ewish Gymnastics, actually went to meet with the FBI in their Indianapolis office and advised the FBI that he has three gymnasts who want to come forward and explained to them what has been happening to them

by Larry Nassa. They didn't follow up for a few months that they had a meeting in July and the first time that the FBI agents actually pick up the phone to speak to one of the gymnasts was on September two, several months later, and a conversation was had with one of the Gymnasts Mikayla Maroney, and it lasted for about three hours. At the end of the conversation,

the agents abbot that is that at all. Then that day had a discussion with the US Attorney's office on what to do because they really didn't believe that they had jurisdiction over this particular matter. And UM was also concerned that the evidence may not rise to their ability to actually bring federal claims against NASA. So the U. S. Attorney for the Southern District of Indiana told them to actually transfer this over to the Lansing office of the

FBI in Michigan, and that never happened. So eight months go by and the US Attorney and U. S. Gymnastics doesn't share anything. There's no follow up. So then what they did is they went to an other FBI office. They went to the Los Angeles office and share the

same back pattern with them as well. There was an investigation, but the Los Angeles office also arrived at the same conclusion that the Indianapolis office has, is that they weren't so sure that they had enough evidence actually to bring a federal case against him based upon the sexual assault.

And again they were supposed to advise the local authorities, because what both officers actually agreed to when they had these discussions, and this is what came out in the report that was issued by the Inspector General of the FBI, they both realized that this really should be dealt with

by state or local authorities. So neither did the Los Angeles office or the Indianapolis office ever contact the attorney general in the state of Texas where this was happening by Nasser, or in the state of Michigan as well, or any local authorities after that. And it was not until the MSU campus police got a tip that a sixteen year old boy was assaulted by Nasser that they issued a subpoena and they went into NASA's house us to get some information. And then after that the local

press picked it up. And when the local press picked it up, then the local FBI office and Lansing started taking a look at it. And that wasn't until about me. So it's confirmed in the Inspector General's report. There's no dispute that the FBI agents knew in twenty fifteen that Nasser was accused of assaulting gymnasts but failed to act, leaving him to continue the sexual assaults. So uster Napis actually went to the FBI in July and not until

May the FBI actually get involved the local FBI. So between that time, some of the women that he was already assaulting he continued to assault, and also during that

time he assaulted women that he didn't assault before. And there were seventy survivors of his sexual assault during that window of time that could have been prevented if the FBI actually stepped in, acted properly, documented it passed the investigation off to the local office and Lansing and did whatever they possibly could to mitigate anyone else being assaulted

by him. Because at the time that the U S Gymnastics actually learned of this and went to the FBI, they fired him, but he also was working with the local high school, another local gymnastic team. He also worked at the Bella Caroli camp down in Texas, and so he was continuing some of his work there, so there was additional victims. Will pray basically that he was finding but if the FBI actually acted properly, they could have

mitigated this and prevented this from happening. So within the past year you had a lot of the gymnastics, very high profiles like Shamone Biles and many others that testified before Congress and told them about what their experiences were and what the faults of the FBI was and the faults of the U S gymnastics team as well, and what they should have done, because there was also a lot of ethical lapses between the FBI and the U

S Olympic team. But during this testimony and at a particular hearing christmer Pray, who's actually has U, the FBI took responsibility and it is extraordinary for any law enforcement governments executive to admit fault or admit liability, were let alone describe the conduct of an employee as a gross misconduct, and he apologized to them. So you have the statement of the federal law enforcement officer taken responsibility for the

mouth seasons of his employees. And in the meantime, what it had transpired is the Inspector General of the FBI actually did his own investigation and he disclosed in this investigation, in this report that to the agents had lied, didn't properly follow up, didn't document, didn't try to mitigate it, and in fact that they had lied to the FBI as well, and the two agents are lying to those who are actually interviewing him, and one of the agents,

agent Abbot, while he was meeting with Stephen Penny, who had a USA Gymnastics Stephen Penny had expressed to him that he was concerned that there's going to be a lot of blowback to him based upon the sexual assaults, and Abbott told him, don't worry about it. You know, I'll have the FBI say something positive about you, basically implying that that you came forward and you try to

help out. And in the meantime, while they're having this discussion, Abbott and Penny are talking about a job to be the head of security for the US Olympic Committee, and then Penny is going to put in a good word for him. So then you have an Asian who actually has a different priority, and the priorities not to you know, bring light to the fact that these girls were sexually assaulted, but cover it up to protect the head of the U S Gymnastics. So this agent could possibly be the

head of security for the Olympic Committee. So this is what was disclosed in the report. What I want to ask you before you go any further is since this is a claim filed under the Federal Tort Claims Act, what happens next. What happens next is once they file the claim, and in order to file the claim, they have to file it within you know, two years of when they were injured or or if there's some new

information that came out. So recently the report was disclosed and the FBI said that they were not going to prosecute the two agents. But what they need to do is they basically need to file a form with the federal government stay what their damages are and which we know that they're claiming a billion dollars, but I think they divided it up amongst the different gymnuts for about

fifty million each. They have to prove what their damages are, submit that documentation, and the FBI has a few options. The first option is that they could settle the case. You could sit down and have a discussion with them, which quite frankly, ethically immorality, that is what they should be doing because you already had the executive take responsibility. Or they could deny the claim. And if they deny the claim, then lossuits can actually be filed. But when

those lassus of filed. They're actually filed before district court. But with all the evidence that the SI has compiled and the culpability that they have, and based upon what's in the Fiddle Torq Claims Act, is really in their best interests to sit down to have a discussion the billion dollar request. Do you think that that's sort of over the top. Well, what the Federal Tort Claims that requires is that the first time you put in the claim, whatever number you put there, you can't come back and

increase that. Ever, So what they're trying to do is put in the maximum that they actually believe, but understanding that they're probably going to negotiate backwards because each individual claimant has to prove damages and those damages are based upon the state where they were assaulted and what those state laws are related to, um, you know, compensatory damages, because they won't get punitive damages under the Act, they

won't get pre judgment interest. But if the state well where they were assaulted allows them to get compensatory damages, they could get that. So that's what they're going to be relying upon. So that fifty million dollar per athletes is pretty high. But they needed to do that just to insulate themselves as they're negotiating backwards. If this were a court case, it doesn't seem like there's even any

discovery or investigation needed here. It's all been done. Yes, that is why morally and escally, the FBI should sit down and have a conversation and they should not continue having these young women being traumatized again. And there is several hundred million dollars that as setified every single year in Congress or the Judgment Act, and they pay out about over three hundred million dollars a year. There is already a pot of money that is set aside for

judgments that are against the United States government. So this isn't, you know, an extraordinary claim that they brought. The number is high, but that number is gonna be little down who makes a decision about settling the case. It could either be the d o J with the FBI, and then if the case goes to court, it goes to

a district court and it's a bench trial. So it's either going to be a federal district judge or it's going to be the FBI and d o J. Do you remember another case where you know, the FBI was sued for so much money, this seems like it's extraordinary. There have been other cases that have been brought in the past against them, not necessarily the FBI, but you know, other government agencies. But the one that was brought against

the SBI, there was a hundred million dollars settlements. And this was a case where the FBI was you know, it was egregious government misconduct that were actually resulted in wrong full incarceration of several men who were falsely accused of participating in the Grizzly Gang slang. And that was a hundred million dollars As far as claims that came to add with this particular act, that's one of the highest recoveries. Let's just say the FBI decides it's not

going to settle. Is there any kind of defense the FBI could interpose outside of the facts of the case. What the federal tort claim ax is it waves immunity in this particular situation. But what they can do is argue,

you know, a series of things. One is, you know, this conduct that will allow how a planket to actually sue under this particular act, you know, has to be a government employee, which these two agents particularly you know, are, but they also would have had to perform the act that they performed within the scope of their duties, and and if they did, because they did, it was their

duty to either do this or not do this. But so their omission of not passing on to the local office that these assaults were going on is an omission. It is within the scope of their duty. But there's

an exception to that called the discretionary clause. So if these agents had discretion not to pass it on or not to bring you a federal action against them, that is what the FBI could argue, is that they had discretion, you know, not to prostitute federal claims, both in the Los Angeles office and in Indianapolis office because they didn't believe that the allegation rose to a federal case. That

is the part that they may argue about discretion. But the fact that they live and they did not path do anything to mitigate or contact local authorities when they were told to do so is what the plaintiffs could argue back. But so there is that discretionary exception, and that exception is the most litigated defense by the federal

government and used in these types of cases. As you mentioned, FBI Director Christopher Ray acknowledge that quote people at the FBI had their own chance to stop this monster back in tw and failed. And considering the publicity that this has gotten, and considering the fact that you have the guilty please by Nasser, you have the I G. S Report, it seems like it will be a case that's settled.

I hope so. And it should be because they're beyond the beyond the discretionary exceptions, that is their only defense. And with all this evidence, like you said, that is out there, it's going to be very difficult for them to actually litigate this court this case in court. So it's best for them to settle and settle now. And the parties have to be flexible. You the plaints that will have to be flexible as far as you know what their damages are, because they still have to prove

what their damages are. There are laws of scholarships, they're a laws of in some of them less less college. There's the trauma and emotional distress, UM. So they have to be flexible with coming down with that number. And I think if they sit down and UM, they could probably hash out a settlement within a few months for each one of them, because there's there's nothing else to defend. Yes, So let me ask you this. Suppose they can't reach a number, could they go to trial just on the

damages portion? They would they If they can't reach the number, then they have to file a case after sixty days. When um within sixty days of what it is that there's some kind of an impass or the federal government denies what it is that they're asking, but they can go to court on damages. Thanks so much, Regina. That's

Regina Calcatera of Calctera Pollock. Similar failures by federal law enforcers have led to major settlements in looting a hundred twenty seven point five million dollars for families of those killed or injured in twenty eighteen at Florida's Marjorie Stoneman Douglas High School. There, the FBI received a tip about five weeks before, but never forwarded the tip to the

South Florida office. The Supreme Court has further weakened a doctrine meant to hold federal law enforcement and other officials accountable for violating constitutional rights. In a six to three decision, the justices would not allow a Washington State innkeepers excessive force claims against a US Border Patrol agent to go forward. The Court has consistently been narrowing what's referred to as a Bivens action, which allows citizens to sue federal officers

who violate their constitutional rights for damages. In the majority opinion, Justice Clarence Thomas said the Court has declined eleven times to extend Bivens, but stopped short of overturning the fifty year precedent. The split was down ideological lines, and Justice Sonya Soto Mayor, joined by joice Is Stephen Bryan and Elena Kagan, said in dissent that the ruling closes the door to biven suits by many who will suffer serious

constitutional violations at the hands of federal agents. Joining me is former federal prosecutor George Newhouse of Richard's Carrington. Tell us what happened here? You know the facts of the case, so a fascinating set of facts. There is a guy named Bouley who lives in Washington State, right on the US Canadian border, and he operates a little bit and Breakfast there that he famously called smugglers in and not surprisingly that got the attention of the Border patrol, which

was watching him and working with him. Over the years. He in fact claimed to be cooperating with him, as some of his guests would be turned into border patrol, and on one occasion he notified the border patrol that he had a visitor coming. Border Patrol agent Egbert Eric Egbert responded pulled the guests out of the van as he pulled up, and Bully came out and let's just say,

invited the agents to leave private property. According to his complaint filed in the federal court against the agent, the agent didn't like this and wound up throwing Boulet onto the ground, assaulted him, used excessive force, and then secondly, um when bull A complained to the Border Patrol about this behavior, which he had a right to do, the agent retaliated by sticking the I R s on him and seeing that other governmental actions occurred unfavorably, so he

then was sued in federal court the agent individually and what's called it Bivens action, and that's a Supreme Court case where the the court said that I've done a federal agent in this case narcotics agents viole someone's Constitutional rights Fourth Amendments, specifically that they could sue the agent in federal court for damages. And that's what Egbert did. Um. It went to the Ninth Circuit. The Ninth Circuit upheld

both of those causes of action. And remember, a cause of action is simply a right to sue someone in federal court. Um. The issue in the Supreme Court was, um, was the were the courts below right in implying i e. Allowing the plaintiff to proceed with a lawsuit for money damages?

And the interesting thing is why this is a significant case is we have, as you know, a very conservative court which is strictly applying the words of the Constitution, and in the court is saying, look, it's up to Congress. It should be Congress's job to decide who has a valid claim to file a claim against the United States. Good example being a statute called the Federal Torque Claims Act, which allows people on over by mail trucks to sue

the government for their damages. McCourt here said, Look, maybe Egbert did the wrong thing, but it's not up to the courts to decide who gets to follow the lawsuit. It's Congress's job, and Congress should weigh the costs and the benefit. And for that reason they threw the through the other plane of out of court thing. He had no claim in federal court against the agent. So it's an interesting constitutional issue, which is to say, win can accord imply a cause of action that is not expressly

stated or delineated by some statute. Congress hasn't made this a specific of what we call right of action, and that's the issue. So George, when he filed this, his lawyers must have known that this was an uphill battle from the start, right because the Supreme Court has been limiting Bevan's actions. Yes, since nine one, the Supreme Court granted two other similar bivens suits, one involving an Eighth Amendment claim of by a prisoner um and another one

on the Fifth amen a claim. But generally speaking, as the courts set forth, Justice Thomas in his opinion, you know eleven or twelve times where the Court has refused to extend bivens um. What's interesting is, of course, the plaintiffs said, this is a Bivins action. Bibbins involved a lawsuit against federal narcotics agents, the precursor to the d e A and for excessive force Fourth Amendment, and Bully said, I'm I'm bringing such a claim only differences against the

Border Patrol, but still a federal law enforcement agent. So they felt, I think pretty confident. In the Ninth Circuit agreed this is a Bivns action. The Supreme Court in this case, however, said Nope, not a Byvin's action, and we decline to engage in judicial activism and create and implied cause of action for you, So that the first question the court dealt with is does this fall squarely within the parameters of Bibbons or is it an extension

of Bibbons? And if it's an extension of Bivens, then the conclusion is a foregone certainty, which is you're out of court. So this was a six or three decision down audiological lines. In descent, Justice Sonia Sotomayor said, the court's ruling Contravenes precedent. Do you think that a Contravenes precedent should this case have been within the Bivens precedent. Well, it's far from me to criticize the United States Supreme Court,

although I do from time to time. Her point, which is a good one, is on the first prong, which is is this a BIBBNS action. She said, yes, it is. She said, Okay, it's a different context because here it's a different agency, the Border Patrol, rather than federal and narcotics agents. But it's also a Fourth Amendment violation, allegedly

for excessive force. And so she said, is squarely within the parameters the confines of bibbons um and what different doesn't make She asks, whether it's the Border Patrol ice, you know, d E. If it's a federal law enforcement agency, is should be all? And she of course pointed out there are eight three federal law enforcement agencies. It can't be that Bibbins is limited to only a federal narcotics agents. So she was right in pointing out that somewhat artificial distinction.

But the second question, which is Court went to great length into Justice Corsage and his concurring opinion instead explicitly it's really time to overrule BIBBNS. Bibbons is not based upon words in the Constitution, a close or explicit reading would deny the Bibbins action, And he basically said or suggested in his concurring opinion that it's time to cut all the way instead of cutting back on bibbons, to cut it out, and this, of course is what the

court is. There are people concerned about the abortion case that the Court is going to backtrack on established pre sent so they didn't do it here. So they didn't say bibbins is no longer the law. But what the Court clearly said is bibmins will not be extended, even to highly analogous situation as as this case presents. So some say that this decision makes it nearly impossible to hold federal police accountable for excessive force. That makes it

so difficult and almost impossible. Well, it's a valid criticism. But on the other hand, as the court points out, almost all federal agencies have alternative remedies. Maybe those remedies are not as satisfactory to plaintiffs as filing a lawsuit, but you can file it an administrative claim as he did. He filed a complaint, and the court pointed out that that results in a lengthy investigation by the agency, which

is charged under the law withholding their agents responsible. So you can file administrative claims against the agents and maybe or maybe not, you could follow lawsuit in state court. But the Supreme Court is e s making it going to make it very difficult in the future to file excessive civil rights claims, excessive fourth claims against federal officers in federal court that are not exactly parallel analogous to

the Bibbins case. Does the Supreme Court's position here seem contrary to the movement in our country today, the movement to whole police more accountable, you know, the Black Lives Matter movement. Well, let's just say you're right. This decision is running a contrary direction. It is going to establish hurdles for lawsuits. Now, lawsuits are not the only way of holding these police officers accountable, but lawsuits in federal court on civil rights violations are going to be fewer

and farther in between. But again, there are, as the Court points out, particularly when Congress. See Congress pass the Federal torqu Claim Act, and Congress is also responsible for regulating the fiddle agencies. So the Court is really saying, don't look to us if we need to have fatal agents more accountable. Well, there's a body called Congress, there's a legislature, and this is their job, and this is not the job of the courts to decide. We think

the court. Thomas was quite clear, and Gorse agreed with him that the legislature is better suited to decide who gets to sue and win and for what violations. And we defer to the legislature. So if you need more enforcement, the court is saying, talk to your congressman. Do these cases,

these Bivens actions usually split along ideological lines, not previously. No, I don't think so, and I'm not a constitutional scholar, of course, but I'm I imagine that most scholars now are looking at this court and saying, this is a new direction for a very conservative court. They have the votes, they have six to three, and they are going to look at and question established precedents. And Bibens now is

per Justice Gorsage his criticism. I think in play it could well be that the next case will result in Bibbins being excised from the body of constitutional law. And again, remember this can be overruled changed by Congress at the Court's express instruction or invitation. The Court is saying, go to Congress. They're in a better position to know and to do the cost benefit analysis of deciding when to establish a judicial cause of action against a federal officer.

And as far as the retaliation claim where he he sort of gratted the guy out to the FBI, the justice is all agreed about that. Yeah, they actually all agreed about that, the first Amendment claim and actually rated him out to what we say the Richard Nixon trick, which was he got the I R. S involved to examine his tax returns. Remember when Tricky Dick did that back in the seventies against to his political enemies. So that was a wrong meaning, that was not the right

thing to do, assuming that the allegations are right. But the court was agreed that that doesn't fit neatly within the exception of Bivins. Bivens has only been applied to a fourth amenmic claim, fifth amenic claim, and an eighth ammic claim, and there is no case decision that would support a first amenmic claim, the first amount of claim being that the government can't retaliate against you when you make a complaint or a petition alleging government as conduct.

So it seems that all the justices were in agreement on that. It was the deciding that he didn't have what looks and looked too many, including myself, to be a traditional Bivens claim under the Fourth Amendment when they denied that right. Thanks so much, George. That's former federal prosecutor George Newhouse of Richard's Carrington. And that's it for

this edition of The Bloomberg Law Show. Remember you can always get the latest legal news honor Bloomberg Law Podcast, and remember to tune into The Bloomberg Law Show every week at ten p m. Wall Street Time. I'm June Grosso and you're listening to Bloomberg