Bates v. United States
| Citation | 517 F. Supp. 1350 |
| Decision Date | 20 July 1981 |
| Docket Number | Civ. A. No. 78-3205-CV-S,78-3212-CV-S. |
| Parties | Marjorie BATES, Plaintiff, v. UNITED STATES of America, Defendant. Juanita Ann DECKARD, et al., Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
William H. Sanders, Karl Zobrist, Kansas City, Mo., for plaintiff Marjorie Bates.
David E. Wilhite, Lebanon, Mo., for plaintiff Juanita Ann Deckard.
James L. Hutton, Jr., Rolla, Mo., and J. Max Price, Salem, Mo., for plaintiffs Leroy A. Bates and Mr. & Mrs. James Hawkins.
Darrell Deputy, Jr., Lebanon, Mo., for plaintiffs Mr. & Mrs. Hershel Needham.
Kenneth Josephson, Asst. U. S. Atty., Kansas City, Mo., for defendant.
This is a civil action arising out of the January 13, 1977, murder of three teenagers and the attempted murder of a fourth teenager by a military policeman on the Fort Leonard Wood, Missouri, military base. The military policeman, Specialist 4 Johnny Lee Thornton, was later convicted of kidnap, rape, assault with intent to kill, and murder. Plaintiffs are Juanita Ann Deckard, the only survivor of the incident and the parents of deceased victims Anthony Lee Bates, Wesley Hawkins, and Linda Needham.
All plaintiffs allege that the United States is liable for Thornton's tortious conduct under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., because he was a "law enforcement officer" within the meaning of the 28 U.S.C. § 2680(h) proviso allowing the United States to be sued for intentional torts committed by its law enforcement officers acting within the scope of their employment (hereinafter referred to as Count I). In addition, plaintiff Bates alleges the United States was negligent in entrusting Thornton with certain instrumentalities of the crime and is therefore liable under the general provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671 et seq. (). This case, originally brought as two separate actions, was consolidated on September 19, 1980, but despite the consolidation the other plaintiffs have chosen not to join with Bates in Count II.
The parties have entered into stipulations of facts and based upon these stipulations, the parties have made cross motions for summary judgment on the issue of liability. All parties have stated that they do not desire to put on any additional evidence or have a plenary evidentiary hearing of any kind and have requested the Court to decide the issue of liability on the basis of the stipulated facts.1
After review of the record, the Court determined that the parties' stipulations of facts were sufficient to enable the Court to rule on the parties' motions for summary judgment on Count I. The Court did not feel, however, that it had before it a sufficient factual basis to render a decision on the motions for summary judgment on Count II. Accordingly, this Court ordered the parties to file additional narrative statements and reopened discovery for Count II of the Bates' case. Submission of the narrative statements for Count II is pending. The discussion set out below therefore, applies only to the parties' motions for summary judgment on Count I.
The stipulations of facts state that on January 12-13, 1977, Johnny Lee Thornton was a Specialist 4 in the 463rd Military Police Company, stationed at Fort Leonard Wood, Missouri. At all relevant times on January 12-13, 1977, Thornton was on active duty as a member of the United States Army and as an employee of the Department of the Army, an agency of defendant United States of America. Thornton was a military policeman assigned to the Game Warden Section of the Provost Marshal Office at Fort Leonard Wood, Missouri. All the facts which form the basis of the present action occurred on the Fort Leonard Wood Military Reservation in Pulaski County, Missouri.
Thornton's duties consisted of the random and selected patrolling of Fort Leonard Wood. Thornton checked permits, assisted sportsmen, and patrolled for fish and game violators, poachers, and trespassers. He was also to search for illegal trash dumping; the destruction, dumping or cutting of trees; and the destruction of wildlife food plots.
Thornton's work involved a minimal amount of supervision and a high degree of professional competence. In addition to his game and wildlife duties set out above Thornton also had authority to arrest military personnel and to detain civilians for any suspected crimes and could make such arrests or detention on any and all parts of the Army base. It was Army policy that the detention of civilians for suspected crimes be limited to only such time necessary to release a civilian to federal or state law enforcement officials.
On the evening of January 12, 1977, Thornton reported for duty and was issued several items of United States Army equipment by agents of defendant United States. He was issued a four-wheel drive military police jeep which was utilized by Thornton while he was on duty on January 12-13, 1977. The vehicle was clearly marked as a military police vehicle and Thornton was in full military uniform at all times during this period.
Thornton was also issued several other items of United States Army equipment by agents of defendant United States. He was given one U. S. Army 45-calibre pistol, several rounds of ammunition, two pairs of military police handcuffs and one military police badge. It was not unusual for someone acting in Thornton's capacity to check out two pairs of handcuffs or several rounds of ammunition before going on duty.
While on duty on the evening of January 12-13, 1977, Thornton stopped a vehicle by using his red emergency lights on his military police jeep. The vehicle was driven by Anthony Lee Bates and occupied by passengers Wesley Hawkins, Juanita Ann Deckard, and Linda Needham. All the occupants of the car were teenagers who lived in the Fort Leonard Wood area. Thornton informed Bates and Hawkins that the southgate Texaco station, a nearby gas station which is not on United States property, had been robbed and that Bates' car matched the description of the car involved in the robbery. While the southgate Texaco station was not, in fact, robbed on January 12-13, 1977, it is agreed that if the southgate Texaco station had been robbed, as Thornton alleged, he would have had the authority to stop and detain suspected vehicles on the military base while he was on duty.
After stopping the vehicle, Thornton ordered the two males, Bates and Hawkins, to get out of the car. He handcuffed Bates and Hawkins' hands behind their backs and placed the two youths in the back seat of the military police jeep. Then, without provocation, Thornton shot Anthony Lee Bates and Wesley Hawkins through the chest with his military issue 45-calibre pistol as they sat handcuffed in the back seat of the jeep.
After shooting Bates and Hawkins, Thornton ordered Juanita Ann Deckard and Linda Needham into the jeep and took them to a cabin on a remote part of the Army base. He then forcibly raped the girls and forced them to commit oral sodomy upon each other and to commit oral sodomy upon him. Afterwards, Thornton shot the two girls. He then buried all four victims in the snow and left them for dead. Anthony Lee Bates, Wesley Hawkins, and Linda Needham died as a result of the gunshot wounds inflicted by Thornton. Juanita Ann Deckard was the only survivor of Thornton's attack. On July 26, 1977, in criminal proceedings before this Court2 Thornton was convicted of murder in the first degree, assault with intent to kill, rape, and kidnapping for the purpose of committing rape.
Plaintiffs bring this action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b)3 and 2671 et seq.4 For purposes of 28 U.S.C. §§ 1346(b) and 2671 et seq., the scope of employment is determined by state law. Stencel Aero Engineering v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977); Bissell v. McElligott, 248 F.Supp. 219 (D.C.Mo.1965) aff'd 369 F.2d 115 (8th Cir. 1966), cert. denied, 387 U.S. 917, 87 S.Ct. 2029, 18 L.Ed.2d 969 (1967). "Acting within the scope of his office or employment" means acting in the line of duty in the case of a member of the military, 28 U.S.C. § 2671, and "the words `line of duty' in 28 U.S.C. § 2671 go no further than to invoke the state law of respondeat superior with respect to tort claims arising out of alleged wrongful acts of military personnel." Bissell v. McElligott, supra, 369 F.2d, at 117. Thus, under these sections, the United States can be liable for the torts of an employee of the government acting within the scope of his employment in the same manner and to the same extent as a private individual under like circumstances in accordance with the law of the place where the act or omission occurred.
(hereinafter referred to as "proviso"). It is stipulated that on...
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