Jarrott v. United States

• Docket Number: 2:22-CV-00430-KWR-JHR
• Decision Date: 24 July 2023
• Parties: GABRIELLA JARROTT, As parent of her minor children, D.J. and N.J., and as personal representative of the wrongful death estate of Darian Jarrott,Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — District of New Mexico

1

GABRIELLA JARROTT, As parent of her minor children, D.J. and N.J., and as personal representative of the wrongful death estate of Darian Jarrott,Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

No. 2:22-CV-00430-KWR-JHR

United States District Court, D. New Mexico

July 24, 2023

MEMORANDUM OPINION AND ORDER

KEA RIGGS UNITED STATES DISTRICT JUDGE.

THIS MATTER is before the Court upon Defendant's Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. 24). Having reviewed the parties' pleadings and applicable law, the Court finds that Defendant's motion is well-taken and therefore, is GRANTED.

Officer Darian Jarrott was shot and killed by Omar Cueva during a traffic stop. Plaintiff asserts that Defendant was negligent resulting in Omar Cueva killing Officer Jarrott. Doc. 3 at ¶ 32.

The Federal Tort Claims Act (“FTCA”) waives the United States' sovereign immunity for certain tort claims. However, Defendant asserts that sovereign immunity has not been waived here due to the “discretionary function” exception to the waiver of sovereign immunity under 28 U.S.C. § 2680(a). Plaintiff disagrees. Although Plaintiff does not contest whether the allegations in this case fall under the discretionary function exception, she asserts that exception is overridden by another statutory subsection, the law enforcement proviso under 28 U.S.C § 2680(h). Under the “law enforcement proviso”, sovereign immunity is waived under 28 U.S.C § 2680(h) for law enforcement officers who commit an intentional tort. The Court agrees with Defendant and concludes that the discretionary function exception still applies even if the law enforcement proviso is also applicable, therefore sovereign immunity is not waived. The Court will dismiss this case without prejudice for lack of subject matter jurisdiction.

BACKGROUND

I. Plaintiff's allegations.

On June 27, 2022, Plaintiff filed an Amended Complaint. Doc. 3. The allegations in the Amended Complaint are as follows.

In January and February 2021, agents with Homeland Security Investigations (“HSI”), a division of the Department of Homeland Security, were investigating a suspected drug trafficker, Omar Cueva. Doc. 3 at 3, ¶ 8. On or about January 28, 2021, an undercover HSI agent purchased a language quantity of methamphetamine from Cueva. Id. at ¶ 10. During that purchase, Cueva was in possession of an “AK-47 style semi-automatic rifle.” Id. at ¶ 10. Although the agent tried to buy the weapon from Cueva, Cueva would not sell the rifle, and told him that he needed it for his protection. Id. Cueva stated that if he got caught, he would not go back to jail, implying that he would try to shoot his way out of an arrest. Id. Cueva had an extensive criminal record and was known to have a violent history. Id. at ¶ 11.

Using undercover agents and a confidential informant, HSI agents set up another transaction with Cueva on February 4, 2021. Id. at ¶ 12. The agents chose not to arrest Cueva at the purchase to protect the identity of the confidential informant. Instead, agents wanted the New Mexico State Police to pull over Cueva on a pretextual traffic stop as he travelled from Deming to Las Cruces. Id. at ¶ 13. Agents held a briefing on the morning of February 4, 2021 to prepare for the operation. Officer Jarrott was not invited to that briefing. Id. at 14.

On February 4, 2021, Officer Jarrott's supervisor, NMSP Sgt. Mark Madrid, was at a training. Sgt. Madrid communicated with the HSI agents that day regarding Cueva. Sgt. Madrid testified that he was not told by the agents about Cueva's history or the extreme danger he posed to a law enforcement officer who might try to apprehend him. Id. at ¶16.

HSI agents Matt Rodriguez and Hector Huerta served as team leader and supervisor. Id. at ¶ 17. Sgt. Madrid stated that he asked them about Cueva, but he was only told that Cueva might be smuggling drugs. Id. at ¶ 18. HSI withheld the information known about Cueva, including his dangerousness, and his stated refusal to be apprehended and intent to shoot his way out of any attempted arrest. Id. at ¶ 19. HSI failed to advise Officer Jarrott or Sgt. Madrid of Cueva's criminal history, that he was considered high risk, that he was described as “paranoid” by a confidential informant, or that Cueva stated he intended to shoot his way out of an encounter with law enforcement rather than be apprehended. Id. at ¶ 20.

HSI assembled a special response team which was on Interstate 10 near Deming on February 4, 2021. Id. at ¶ 21. The special response team was driving an armored vehicle, wearing tactical and bulletproof equipment, and was accompanied by a medic. Officer Jarrott was not told the special response team was trailing Cueva. Id.

At approximately noon on February 4, 2021, Officer Jarrott saw a white pickup truck matching the description Sgt. Madrid had given him. Officer Jarrott pulled over the truck, which was driven by Cueva. Id. at ¶ 22. Officer Jarrott was alone when he pulled over Mr. Cueva. Unaware of the danger he was in, Officer Jarrott approached Cueva as he would a routine traffic stop. He did not have his weapon drawn, and he did not shout commands at Cueva. Id. at ¶¶ 23, 24. Officer Jarrott approached the vehicle from the passenger side and was conversing with Cueva for a couple minutes through the passenger window of the truck. He then asked Cueva to step out of the vehicle and meet him behind the truck bed. Id. at ¶ 25. Cueva emerged from the vehicle with a “semi-automatic rifle,” and shot and killed Officer Jarrott. Id. at ¶ 26.

In her amended complaint, Plaintiff asserts a (1) wrongful death claim, and (2) a loss of consortium claim. She asserted that Defendant's “negligence and/or recklessness resulted in Omar Cueva killing Officer Jarrott.” Id. at ¶ 32.

II. Plaintiff's SF-95 administrative claims.

Plaintiff filed two SF-95 administrative claims with the Department of Homeland Security. See Doc. 24-1, Ex. A; Doc. 24-2, Ex. B. On or about April 20, 2021, the U.S. Department of Homeland Security (“DHS”) received an SF-95 administrative claim from “New Mexico State Police Officer Darian Jarrott, Deceased, c/o Gabriella Jarrott, Personal Representative.” Doc. 241, Ex. A, Box. 2. On or about May 4, 2021, DHS received a second identical SF-95 claim. Doc. 24-2, Ex. B.

In the SF-95 claims, Plaintiff stated:

On or about February 4, 2021, while on duty in his role as an officer for the New Mexico State Police (“NMSP”), and upon direction of his superiors, Darian Jarrott was assisting the U.S. Department of Homeland Security (“HSI”) with an investigation. The details of the investigation were not disclosed to Officer Jarrott. As part of that investigation, Darian Jarrott was instructed by HSI and NMSP to create a pretext and initiate a traffic stop of Omar Felix Cueva, which he did on the basis of Cueva's window tint. Officer Jarrott was not told Cueva was known to be an armed and violent felon, that Cueva was in the process of transporting a large quantity of illegal drugs, nor that Cueva was desperate not to be arrested. During the traffic stop, Cueva shot Officer Jarrott multiple times and killed him.

HSI and NMSP knowingly sent Officer Jarrott into danger without suitable backup, and completely failed to apprise Officer Jarrott of any details of the investigation or suspect, including but not limited to Cueva's violent criminal history. HSI and NMSP's omission of the extreme danger this investigation and interaction with Cueva brought was a direct cause of Mr. Jarrott's death. Mr. Jarrott's constitutional rights were violated, and various torts were committed by HSI and NMSP.

Doc. 24-1, Ex. A at 4; Doc. 24-2, Ex. B at 4. In box 12 of the SF-95 forms, claimants are instructed to list the amount of their claim. There are separate boxes for property damage, personal injury, and wrongful death. Plaintiff left the “personal injury” box blank, and in the wrongful death box, claimed $50,000,000. Doc. 24 at 5. DHS denied both claims. Doc. 24 at 5.

LEGAL STANDARD

Defendant asserts sovereign immunity and moves to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Where a defendant makes a facial attack on the complaint, the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).

Where a defendant makes a factual attack, the plaintiff bears the burden of presenting evidence sufficient to establish the Court's subject matter jurisdiction by a preponderance of the evidence. See United States ex rel. Hafter D.O. v. Spectrum Emerg. Care, Inc., 190 F.3d 1156, 1160 n.5 (10th Cir. 1999). The Court may go beyond the complaint and consider evidence presented by the parties. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995).

Plaintiff did not object to the Court considering this motion under Fed.R.Civ.P. 12(b)(1) or 12(b)(6). Neither party requested the Court convert this matter under Rule 56. Rather, the relevant jurisdictional facts appear to be undisputed, and Plaintiff does not object to the Court considering the SF 95 administrative claims she filed with Defendant.

DISCUSSION

I. Discretionary function exception to the waiver of sovereign immunity bars the claims in this case.

A. The Discretionary function exception under 28 U.S.C. § 2680(a) applies to this case.

Defendant argues that the discretionary function exception to the sovereign immunity waiver bars the claims in this case. The Court agrees.

“The concept of sovereign immunity means that the United States cannot be sued without its consent.” Iowa Tribe of Kan. & Neb. v. Salazar, 607 F.3d 1225, 1232 (10th Cir. 2010) (quotations omitted). The FTCA provides “a limited waiver of [the United States'] sovereign immunity ... for certain torts...