In re Marjory Stoneman Douglas High Sch. Shooting FTCA Litig.
| Decision Date | 31 August 2020 |
| Docket Number | Case No. 20-60308-CIV-DIMITROULEAS,Case No. 18-62758-CIV-DIMITROULEAS, Case No. 20-60307-CIV-DIMITROULEAS, Case No. 20-60310-CIV-DIMITROULEAS, Case No. 20-60306-CIV-DIMITROULEAS, Case No. 20-60303-CIV-DIMITROULEAS, Case No. 20-60327-CIV-DIMITROULEAS, Case No. 20-60331-CIV-DIMITROULEAS, Case No. 19-61623-CIV-DIMITROULEAS, Case No. 20-61088-CIV-DIMITROULEAS, Case No. 20-60330-CIV-DIMITROULEAS, Case No. 20-61103-CIV-DIMITROULEAS, Case No. 20-60483-CIV-DIMITROULEAS, Case No. 20-60333-CIV-DIMITROULEAS, Case No. 20-60322-CIV-DIMITROULEAS, Case No. 20-60325-CIV-DIMITROULEAS, Case No. 20-60317-CIV-DIMITROULEAS, Case No. 20-60319-CIV-DIMITROULEAS, Case No. 20-60326-CIV-DIMITROULEAS, Case No. 20-60332-CIV-DIMITROULEAS, Case No. 20-60328-CIV-DIMITROULEAS, Case No. 20-60481-CIV-DIMITROULEAS, Case No. 20-60311-CIV-DIMITROULEAS |
| Citation | 482 F.Supp.3d 1273 |
| Parties | IN RE: MARJORY STONEMAN DOUGLAS HIGH SCHOOL SHOOTING FTCA LITIGATION |
| Court | U.S. District Court — Southern District of Florida |
ORDER ON DEFENDANT UNITED STATES OF AMERICA'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION
THIS CAUSE is before the Court on Defendant United States of America (the "United States" or "Defendant")’s Motion to Dismiss for Lack of Subject Matter Jurisdiction [DE 206], filed herein on April 21, 2020. The Court has carefully considered the Motion, Plaintiffs, consisting of representatives of the estates of murder victims, parents of injured minors, and injured individuals who are not minors, ("Plaintiffs") Response to the Government's Motion to Dismiss [DE 219], Defendant's Reply [DE 220], Plaintiffs’ Surreply [DE 223], and is otherwise fully advised in the premises.
On February 14, 2018, Nikolas Cruz entered Marjory Stoneman Douglas High School in Parkland, Florida, killed 17 students and teachers, and injured 17 others. On November 13, 2018, Plaintiffs Frederic and Jennifer Guttenberg, as co-representatives of the Estate of Jaime Guttenberg, one of the murdered students, filed case no. 18-cv-62758-WPD, alleging a claim of negligence against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b). Plaintiffs alleged therein that the Federal Bureau of Investigation ("FBI") failed to comply with its mandatory obligations to handle, investigate, and intervene on tips it received about Nikolas Cruz's plans to carry out a mass shooting, resulting in the death of their daughter. See [DE 1].
See [DE 27]. Jurisdictional discovery took much longer than the Court anticipated. See [DE 187] The Court determined the delay to be predominately attributable to the United States’ conduct in improperly withholding relevant material, and on March 5, 2020, the Court imposed the following remedy:
Jurisdictional discovery remains closed. The United States’ Motion to Dismiss [DE 17] is denied as to the FTCA's discretionary function exception, without prejudice to the United States raising this argument at summary judgment or trial following full discovery, in the event that the Court denies the Motion to Dismiss as to the United States’ argument that it did not owe a duty to Plaintiffs and their daughter under Florida law.2 Plaintiffs shall now have fourteen (14) days to either respond to that argument in the Motion to Dismiss or file an Amended Complaint.
See [DE 187].
On March 26, 2020, Plaintiffs filed the Consolidated Verified Amended Complaint, which is the operative pleading. See [DE 190]. According to the factual allegations of the Consolidated Verified Amended Complaint, which the Court assumes to be true for the purposes of this Motion to Dismiss:
Prior to 2012, concerned citizens with information about potential threats to life could directly contact their local FBI field office and could even speak directly with FBI agents and analysts. Compl. ¶ 20. This meant that the personnel at the local offices—the agents and analysts tasked with investigative and intelligence duties—would receive calls directly from the public and process information about potential threats themselves. ¶ 20. In 2012, the FBI upended this system, and replaced it with the Public Access Line ("PAL"). ¶ 21. The FBI established the PAL in 2012 to serve as a centralized system to receive tip information from the public to the FBI about crimes and threats and relay that tip information to FBI agents and analysts. ¶ 21. In so doing, the PAL undertook to serve as the nation's core hub, repository, and distribution point for tips about potential threats to life, including mass shootings and school shootings. ¶¶ 23–33.
On September 24, 2017, Ben Bennight, a Mississippi bail bondsman, received a comment on his YouTube channel from someone with the username "nikolas cruz," which is the first and last name of Nikolas Cruz, who made no attempt to conceal is identity. ¶¶ 35-36. The comment read, "going to be a professional school shooter." ¶ 35. Bennight immediately reported Cruz's threatening comment to the FBI. ¶ 37. The FBI entered the tip into the Guardian system and assigned the lead to FBI agents at a local field office. ¶ 37. FBI agents from the local field office interviewed the bail bondsman about the comment. ¶ 38. The FBI closed its file on the matter in October 2017. ¶ 39.
The PAL also specifically undertook to serve as the intake system and repository for the tip about Nikolas Cruz relayed by a concerned caller on January 5, 2018. ¶¶ 40–55. A little more than one month before the shooting, the FBI received another tip warning that Cruz would commit a school shooting. ¶ 40. On January 5, 2018, a person purportedly close to Nikolas Cruz telephoned the PAL to report her concerns about Cruz's behavior. ¶ 41. This tip was extremely urgent and highly specific, both about the likelihood that Cruz would soon try to hurt or kill others, and about Cruz's likely target: his former high school in Parkland, Florida. Id. ¶¶ 43-55. The January 5 caller provided detailed information about Cruz's desire to kill people, his erratic behavior, his history of violence, his disturbing social media posts, his fixation with ISIS, the potential of him conducting a school shooting, and his increasing obsession with amassing guns, including assault-style rifles. ¶ 41. The caller expressed a variety of concerns about Cruz, ranging from his "mental capacity of a 12 to a 14 year old," to the fact that "he's so into ISIS," to the fact that he "bought all these rifles and ammunition and he posted pictures of them on Instagram." ¶¶ 41-55. The caller noted that Cruz was living with a family who let him keep his guns in the house. ¶ 53. At one point during the call, the caller expressed her concern about Cruz "getting into a school and just shooting the place up." ¶ 55. The PAL's responses to the tipster had the effect of assuring the her that the FBI would take the appropriate investigative action—at the very least, look into the threat and potentially follow-up with her. ¶ 64. In reliance on the PAL's undertaking to get the information into the right hands—and assured that the PAL would in fact do so—the caller explicitly forewent other efforts she had considered, such as contacting the Department of Homeland Security, other law enforcement agencies, or Marjory Stoneman Douglas High School, to tell them about Cruz's plans to shoot up a school and efforts to carry them out. ¶¶ 56–64.
The FBI did not take appropriate investigative steps in response to the call. ¶ 65. The FBI failed to document the information it received from the January 5, 2018 caller. ¶ 122. No Guardian i.e. , documentation which directly led to certain investigative steps being taken, was prepared for this information. ¶ 121. The PAL failed to get the information provided by the caller to the PAL to the right hands in the FBI. ¶ 65. Therefore, the tip never reached the FBI's agents and analysts, including those at the local FBI Field Office in Miami, Florida, where additional investigative steps would have been taken. ¶ 65. The FBI agents and analysts were therefore never able to assess, investigate, mitigate, or prevent the threat. ¶¶64-65, 113. The information provided by the January 5, 2018 caller to the PAL was not forwarded to the FBI Miami Field Office or passed along to Marjory Stoneman Douglas High School or local law enforcement agencies in Parkland, Florida. ¶ 65.
On the afternoon of February 14, 2018, Nikolas Cruz entered the grounds of Marjory Stoneman Douglas High School and made his way to Building 12 of the school. ¶ 84. Upon entering Building 12, Cruz murdered 17 people and injured at least 17 others. ¶¶ 83-91. Cruz fled the scene and was later apprehended by local law enforcement. ¶ 90.
After the shooting, the FBI made a series of extraordinary admissions. ¶¶ 125-162. FBI officials told victims’ families as well as the public that PAL failed to follow established protocols in handling the information received on January 5, 2018. ¶¶ 125-162. The FBI also said that had the tip reached the Miami Field Office—the very place the tip would have gone directly...
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...by the South Carolina Supreme Court.The court also finds instructive In re Marjory Stoneman Douglas High School Shooting FTCA Litigation, Case No. 20-61103-CIV-DIMITROULEAS, 482 F.Supp.3d 1273, (S.D. Fla. Aug. 31, 2020). In In re Marjory Stoneman Douglas High School, the plaintiffs were vic......
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