Joiner v. United States, 011020 FED5, 19-10202

Docket Nº:19-10202
Opinion Judge:JAMES C. HO, CIRCUIT JUDGE
Party Name:BRUCE JOINER, Plaintiff - Appellant v. UNITED STATES OF AMERICA, Defendant-Appellee
Judge Panel:Before WIENER, HIGGINSON, and HO, Circuit Judges.
Case Date:January 10, 2020
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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BRUCE JOINER, Plaintiff - Appellant

v.

UNITED STATES OF AMERICA, Defendant-Appellee

No. 19-10202

United States Court of Appeals, Fifth Circuit

January 10, 2020

Appeal from the United States District Court for the Northern District of Texas

Before WIENER, HIGGINSON, and HO, Circuit Judges.

JAMES C. HO, CIRCUIT JUDGE

The district court dismissed this case for lack of subject matter jurisdiction under the Federal Tort Claims Act and the Anti-Terrorism Act. It also precluded additional discovery. We affirm.

I.

On May 3, 2015, Bruce Joiner was on duty as a security guard for the "First Annual Muhammed Art Exhibit and Contest" in Garland, Texas. That day, a pair of Islamic terrorists-Elton Simpson and Nadir Soofi-attacked the event site and shot Joiner in the leg.

Both Simpson and Soofi were subjects of an ongoing FBI investigation at the time of the shooting. As early as 2007, Simpson, an Arizona citizen, was flagged for potential terrorist sympathies. By 2010, Simpson became friendly with Soofi, a fellow mosque member. Around this time, Soofi attempted to purchase a handgun from the Lone Wolf Trading Company in Arizona. The Lone Wolf store was part of the Bureau of Alcohol, Tobacco and Firearms' "Fast and Furious" gunwalking operation, where federal agents would sell firearms to unauthorized buyers in hopes of tracing them back to the Mexican cartel. A background check identified Soofi as possibly being ineligible to purchase a firearm, and a seven-day hold was initially placed on the sale. It was lifted after twenty-four hours, at which point Soofi bought the gun.

On January 7, 2015, terrorists affiliated with al-Qaeda attacked the Paris offices of Charlie Hebdo in retaliation for the magazine's publication of cartoons depicting the prophet Muhammad. Ten days later, an Islamic group held a conference at the Curtis Culwell Center in Garland, Texas, called "Stand with the Prophet in Honor and Respect." The conference featured criticism of those who published likenesses of Muhammad. In response, another organization planned a "Draw the Prophet" event, also to be held in Garland.

Simpson denounced the "Draw the Prophet" event in a Twitter exchange with Mohamed Abdullahi Hassan, an ISIS leader in Somalia. Simpson tweeted, "When will they ever learn," and Hassan responded, "The brothers from the Charlie Hebdo attack did their part. It's time for brothers in the #US to do their part."

At this point, Erick Jamal Hendricks, a South Carolina man, contacted Simpson via Twitter. Hendricks had been working to establish an ISIS cell in the United States and was being investigated by and in communication with an undercover FBI agent known as UCE-1. UCE-1 initially contacted Hendricks on social media, posing as a Muslim interested in joining ISIS. After vetting UCE-1, Hendricks asked for his help recruiting members for a domestic terror group. UCE-1 contacted Simpson on April 23, 2015, at Hendricks' instruction. The next day, Simpson and UCE-1 had the following conversation over social media: UCE-1: Tear up Texas.

Simpson: Bro, u don't have to say that . . . U know what happened in Paris . . . I think . . . Yes or no . . . ?

UCE-1: Right.

Simpson: So that goes without saying . . . No need to be direct.

UCE-1 remained in communication with Hendricks about the upcoming Garland event. Hendricks explained that he was on the no-fly list and could not travel to Texas. UCE-1 volunteered to go instead. Hendricks told UCE-1, "You can link with him [Simpson] brother. That's your call."

On May 3, UCE-1 traveled to Garland where the "Draw the Prophet" event was taking place. UCE-1 drove his own car and Simpson and Soofi followed in another vehicle. UCE-1 communicated with Hendricks in real time, informing him that he was in the vicinity and implying he was armed. Hendricks asked a variety of questions about the security setup at the site. As the two cars approached a police barricade at the rear entrance to the event, UCE-1 took a photograph of the area on his cell phone. Two security officers, including Joiner, were visible in the background.

Simpson's car pulled up to the barricade. Simpson and Soofi jumped out and began shooting, hitting Joiner in the leg.

Joiner filed suit against the United States under the Federal Tort Claims Act ("FTCA") and the Anti-Terrorism Act ("ATA"), for assault and...

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