The Difficulty In Holding The Gov't Accountable When It Breaks The Law | Techdirt
by Mike Masnick
Thu, Oct 20th 2011 2:03am
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We've discussed in the past how the US government likes to use claims of sovereign immunity or national security to avoid being held accountable (and/or to hide the details). This opens the system up to widespread abuse, and it's hard not to imagine that's happening. Even if the vast majority of government workers are good and honest people, the system is structured with so little recourse, that it's impossible not to expect massive abuses of power.
In one recent case, we wrote about an EPA agent who pretty much made up an entire case against a guy, Hubert Vidrine, mostly because it allowed the EPA agent to spend more time with his mistress, with whom he was working on the case. While that's one rare example of the government being held accountable (it had to pay the guy), Vidrine's lawyer wants the world to know that the legal system is basically set up to stymie every effort by folks like Vidrine to respond to bogus criminal charges by the government. The lawyer, Gary Cornwell, was kind enough to pass along a letter he recently sent to Senator Rand Paul, following the Vidrine verdict. That letter is embedded below, but there are a few highlights.
First, he points out that while the facts of the case are certainly unusual, it's unfair to say that such abuses aren't common. The fact is, we just don't know, and the system makes it extremely difficult for anyone like Vidrine to fight back, even when there has clearly been a completely arbitrary and malicious prosecution:
Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged:I write principally to convey to you my disagreement with the suggestion of David Uhlmann, former chief of the environmental crimes section at the Justice Department, as reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated situation." This probably is an unusual case; but not because it reflects an isolated problem. More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers from filing malicious prosecution cases.
When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal court in Lafayette, LA. I then fought with the government for over 3 ½ more years to get access to the EPA/FBI files documenting the perjury and other acts used by government agents to secure an indictment in December, 1999, and to get truthful deposition testimony uncovering how and why they had kept the prosecution going for nearly four more years (until September, 2003), when all charges were finally dismissed because there had never been a shred of evidence that any crime had been committed. I then tried the case in June, 2011.
Of course, for the most part, it appears that the government has been trying to move in the other direction, to shield itself from the very laws it passes and requires others to follow.
Plainly, what happened in this case just should not happen in our country, and to minimize the number of times it happens again the FTCA should be strengthened to make it a more effective form of relief for those injured by government misconduct. Most victims of governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious prosecution cases, because the standard of liability (which requires proof of the lack of “probable cause”) is high, and because malicious prosecution cases (like this one) are often complex and involve many witnesses and thousands of documents. (The government produced over 15,000 documents in this case and then argued that their extensive investigation proved that they did have probable cause and were not acting maliciously.)
Given those realities, the Federal Tort Claim Act would better serve our country’s historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating on page 142 that “. . . given the egregious conduct displayed by an agent of the government and the devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this Court would have awarded punitive damages in the hope of deterring such reckless and damaging conduct and abuse of power in the future;” (2) if it allowed the Court to compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not cap attorney fees at 25% of the Plaintiff’s recovery, and (4) if – at least in those cases which are brought solely against the United States (and not against any prosecutor personally) – it expressly allowed “malicious prosecution” claims to be based on the acts of “prosecutors.”
